Section 33-16-01.1-17 - Upset1. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the following criteria are demonstrated through properly signed, contemporaneous operating logs, or other relevant evidence: a. An upset occurred and the user can identify the cause or causes; b. The facility was at the time being operated in a prudent and professional manner and in compliance with applicable operation and maintenance procedures; and c. The user has submitted the following information to the publicly owned treatment works and to the control authority within twenty-four hours of becoming aware of the upset. If the information is submitted orally, a written submission shall be provided within five days: (1) A description of the indirect discharge and the cause of noncompliance; (2) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and (3) Steps being taken or being planned to reduce, eliminate, and prevent recurrence of the noncompliance. 2. In any enforcement proceeding the industrial user seeking to establish the occurrence of an upset shall have the burden of proof. 3. No determination made during administrative review of claims that noncompliance with categorical pretreatment standards was caused by upset, is final administrative action. 4. The industrial user shall control production or all indirect discharges to the extent necessary to maintain compliance with categorical pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. N.D. Admin Code 33-16-01.1-17
Effective October 1, 2002.General Authority: NDCC 61-28-04, 61-28-05
Law Implemented: NDCC 61-28-04, 61-28-07