§ 19-95. Affirmative defenses.

(a)

An industrial User shall have an affirmative defense in any action brought against it alleging a violation of the general prohibitions or the specific prohibitions set forth in section 19-31(a) and (b)(3) through (7), of this article where the industrial User can demonstrate that:

(1)

It did not know or have reason to know that its discharge, alone or in conjunction with a discharge or discharges from other sources, would cause pass through or interference; and

(2)

Either of the following:

a.

A local limit designed to prevent pass through or interference was developed in accordance with section 62-625.400 (3), FAC., for each pollutant in the industrial User's discharge that caused pass through or interference, and the industrial User was in compliance with each such local limit directly prior to and during the pass through or interference; or

b.

If a local limit designed to prevent pass through or interference has not been developed in accordance with section 62-625.400 (3), FAC., for the pollutants that caused the pass through or interference, and the industrial User's discharge directly, prior to, and during the pass through or interference did not change substantially in nature or constituents from the industrial user's discharge activity when the WWF was regularly in compliance with the WWF's permit requirements and applicable requirements for domestic wastewater residuals.

(b)

An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the following conditions are met:

(1)

An industrial User who wishes to establish the affirmative defense of an upset shall demonstrate, through properly signed, contemporaneous operation logs, or other relevant evidence that:

a.

An upset occurred and the industrial user can identify the cause of the upset;

b.

The industrial User's facility was, at the time of the upset, being properly operated; and

c.

Steps are being taken or planned to reduce, eliminate and prevent recurrence of the noncompliance.

(2)

Burden of proof. In any enforcement proceeding the industrial User seeking to establish the occurrence of an upset has the burden of proof.

(c)

The industrial User shall control production of all 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. This requirement applies in the situation where, among other things, the primary source of power of the treatment facility is reduced, lost or fails.

(Ord. No. 97-15, § 9(9.5), 9-15-97; Ord. No. 02-28, § 1, 11-19-2002; Ord. No. 12-16, § II(Exh. A), 7-3-2012)