Affirmative defenses to discharge violations.
Charlotte City Code § 23-98
in effectSec. 23-98. - Affirmative defenses to discharge violations.
(a) Upset. An affirmative defense of upset may be used for noncompliance with this article in accordance with the following:
(1) An upset shall constitute an affirmative defense to an action brought for noncompliance with pretreatment standards if the requirements of subsection (a)(2) of this section are met.
(2) A 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 user can identify the cause of the upset;
b. The facility was at the time being operated in a prudent and workmanlike manner and in compliance with reasonable operation and maintenance procedures established for the facility; and
c. The user has submitted the following information to CMUD within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided within five days):
1. A description of the indirect discharge and 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 and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.
(3) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(4) Users will have the opportunity for a judicial determination of any claim of upset only in an enforcement action brought for noncompliance with pretreatment standards.
(5) Users shall control production of all discharges to the extent necessary to maintain compliance with 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.
(b) Prohibited discharge standards defense. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in subsections 23-79(a) or the specific prohibitions in subsections 23-79(b)(2), (4), (8), (9), and (16) of this article, if it can prove that 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 that either:
(1) A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass through or interference; or
(2) No local limit exists, but the discharge did not change significantly in nature or constituents from the user's prior discharge when the city was regularly in compliance with its NPDES permit.
(c) Bypass.
(1) Bypass is prohibited, and CMUD may take an enforcement action against a user for a bypass, unless authorized by CMUD pursuant to subsection (c)(4) of this section or unless:
a. Bypass was unavoidable to prevent loss of life, serious 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 user submitted notices as required under subsection (c)(3) of this section.
(2) If a user knows in advance of the need for a bypass, it shall submit prior notice to CMUD, at least ten days before the date of the bypass, if possible.
(3) A user shall submit oral notice to CMUD of an unanticipated bypass that exceeds applicable pretreatment standards within 24 hours from the time it becomes aware of the bypass. A written submission shall also be provided within five days of the time the 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 reoccurrence of the bypass. CMUD may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
(4) CMUD may approve an anticipated bypass, subject to such conditions as CMUD determines to be appropriate, after considering its adverse effects, if CMUD determines that the anticipated bypass will meet:
a. All conditions set forth in subsections (c)(1)a—c of this section; or
b. All applicable pretreatment standards and requirements and the anticipated bypass is necessary to allow essential maintenance to ensure efficient operation.
(5) Notwithstanding subsections (c)(1)—(4) of this section, the user shall be liable at all times and under all circumstances for injury to any person and damage to any property caused in whole or in part by the bypass. For purposes of this subsection, the term "person" includes, but is not limited to, the POTW personnel, and the term "property" refers to, but is not limited to, the POTW.
(Ord. No. 5230, § 1(Exh. A), 10-28-2013)
Source: City of Charlotte, Code of Ordinances and City Charter (Municode Library, library.municode.com)URL: https://library.municode.com/nc/charlotte/codes/code_of_ordinances?nodeId=PTIICOOR_CH23WASEINWADIRE_ARTIIIWADIRE_S23-98AFDEDIVIFetched: 10/27/2026