Affirmative defenses to discharge violations.
Las Vegas Municipal Code § 14.17.085
in effect14.17.085 - Affirmative defenses to discharge violations.
(A) Upset.
(1) 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.
(2) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (3) below are met.
(3) 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:
(a) An upset occurred, and the industrial user can identify the cause(s) of the upset;
(b) The facility where the upset occurred, at the time in question, was being operated in a professional and competent manner and in compliance with applicable operational and maintenance procedures; and
(c) The industrial user submitted the following information to the Director within twenty-four hours after becoming aware of the upset (and, if the information was provided orally, a written submission was provided to the Director within five days):
(i) A description of the indirect discharge and cause of noncompliance;
(ii) The period of noncompliance, including exact dates and times, or, if not corrected, the anticipated time the noncompliance is expected to continue; and
(iii) The steps being taken and plans being made to reduce, eliminate, and prevent recurrence of the noncompliance.
(4) In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(5) An industrial user will have the opportunity for a judicial determination on any claim of upset only in connection with a judicial enforcement action brought against the user for noncompliance with categorical pretreatment standards.
(6) In cases where an upset has occurred by reason of the reduction, loss, or failure of its treatment facility, the industrial user shall control production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards 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.
(B) Standards regarding prohibited discharges. An industrial user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions set forth in LVMC 14.17.015(A) or the specific prohibitions set forth in LVMC 14.17.015(B), subsections (3), (4), (5), (6) or (8) where the industrial user can demonstrate the existence of the circumstance in subsection (1) below and the existence of the circumstance listed in either subsections (2) or (3) below:
(1) It did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, would cause pass through or interference; and
(2) A local limit designed to prevent pass through or interference was developed 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
(3) If a local limit designed to prevent pass through or interference, or both, as the case may be, was not developed for the pollutant(s) that caused the pass through or interference, 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 user's prior discharge activity when the POTW was regularly in compliance with the requirements of the POTW's NPDES permit and, in the case of interference, applicable requirements for sewage sludge use or disposal.
(C) Bypass.
(1) For the purposes of this subsection (C), the terms "bypass" and "severe property damage" have the meanings ascribed to them in LVMC 14.17.010.
(2) An industrial user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of subsections (3) and (4) below but are reportable under LVMC 14.17.065, subsections (A), (D), (F), (J) and (K), as applicable.
(3) Notice.
(a) If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the Director at least ten days before the date of the bypass.
(b) An industrial user shall submit oral notice to the Director of an unanticipated bypass that exceeds applicable pretreatment standards within twenty-four hours from the time the industrial user becomes aware of the bypass. A written submission shall also be provided within five days from the time the industrial user becomes aware of the bypass. The written submission shall contain a description of the bypass and its cause; the duration of the bypass, including exact dates and times, and, if the bypass has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the bypass.
(4) The Director may take an enforcement action against an industrial user for a bypass, unless:
(a) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(b) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
(c) The industrial user submitted notices as required under subsection (3) above.
(5) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions set forth in subsections (4)(a), (b) and (c) above.
(Ord. No. 6891, § 2, 11-6-24)
Source: City of Las Vegas, Municipal Code and City Charter (Municode Library, library.municode.com)URL: https://library.municode.com/nv/las_vegas/codes/code_of_ordinances?nodeId=TIT14PUSE_CH14.17WACOTR_14.17.085AFDEDIVIFetched: 10/28/2026