§ 98-31. Act of God defense.

(a)

Act of God defense. The act of God defense constitutes a statutory affirmative defense, pursuant to V.T.C.A., Water Code § 7.251, in an action brought in municipal or state court. If a person can establish that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot, or other catastrophe, the event is not a violation of the ordinance or permit.

(b)

An industrial user who wishes to establish the act of God affirmative defense shall demonstrate, through relevant evidence, that:

(1)

An event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance occurred, and the sole cause of the event was an act of God, war, strike, riot or other catastrophe; and

(2)

The industrial user has submitted the following information to the POTW and the city within 24 hours of becoming aware of the event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance (if this information is provided orally, a written submission must be provided within five days):

a.

A description of the event, and the nature and cause of the event;

b.

The time period of the event, including exact dates and times or, if still continuing, the anticipated time the event is expected to continue; and

c.

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

(c)

Burden of proof. In any enforcement proceeding, the industrial user seeking to establish the act of God affirmative defense shall have the burden of proving by a preponderance of the evidence that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot or other catastrophe.

(Ord. No. O-15-11, § I, 4-11-2011)