Virginia Administrative Code
Title 9 - ENVIRONMENT
Agency 25 - STATE WATER CONTROL BOARD
Chapter 31 - VIRGINIA POLLUTANT DISCHARGE ELIMINATION SYSTEM (VPDES) PERMIT REGULATION
Part VII - General Pretreatment Regulations for Existing and New Sources of Pollution
Section 9VAC25-31-880 - Upset provision

Universal Citation: 9 VA Admin Code 25-31-880

Current through Register Vol. 41, No. 3, September 23, 2024

A. For the purposes of this section, "upset" means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the industrial user. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

B. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection C of this section are met.

C. An industrial user who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that:

1. An upset occurred and the industrial user can identify the cause or causes of the upset;

2. The facility was at the time being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and

3. The industrial user has submitted the following information to the POTW and control authority within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days):
a. A description of the indirect discharge and cause of noncompliance;

b. The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and

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

D. In any enforcement proceeding the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.

E. In the usual exercise of prosecutorial discretion, the director should review any claims that noncompliance was caused by an upset. No determinations made in the course of the review constitute final director action subject to judicial review. Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with categorical pretreatment standards.

F. The industrial user shall control production or 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.

Statutory Authority

§§ 62.1-44.15, 62.1-44.16, 62.1-44.17, 62.1-44.18, and 62.1-44.19 of the Code of Virginia.

Disclaimer: These regulations may not be the most recent version. Virginia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.