City of Gardner, MA Article XIV Affirmative Defenses to Discharge Violations

§ 553-73 Upset.

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 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 below are met.

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

(1) An upset occurred and the industrial user has identified the cause(s) 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 user has submitted the following information to the Director within 24 hours of becoming aware of the upset (if this information is provided orally, a written submission shall 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 time the user anticipates the noncompliance to continue; and

(c) Steps the user is taking or has taken to reduce, eliminate, and prevent recurrence of the noncompliance.

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

E. Users shall 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. A user shall control production of all discharges as necessary to maintain compliance with categorical pretreatment standards in the event of reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided. In addition to other situations, this requirement shall apply where the primary source of power of the treatment facility is reduced, lost, or fails.

G. Notwithstanding the above affirmative defenses, the user shall not be excused from its responsibility to clean up the violating discharge, at its own expense, and in compliance with local, state and federal law, and further to pay for any and all damages arising from said discharge, whether to the City or third parties.

§ 553-74 Prohibited discharge standards.

A. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 553-18A of this chapter or the specific prohibitions in § 553-18B(3) through (17) of this chapter if it proves 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 immediately prior to, and during, the pass-through or interference; or

(2) No local limit exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the City was regularly in compliance with its NPDES permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.

B. Notwithstanding the above affirmative defenses, the user is not excused from cleaning up the violating discharge, as set forth in § 553-73G.

§ 553-75 Bypass.

A. For the purposes of this section, the following terms shall have the meanings indicated:

BYPASS

The intentional diversion of waste streams from any portion of a user's treatment facility.

SEVERE PROPERTY DAMAGE

Substantial physical damage to property, damage to the treatment facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.

B. Bypass prohibited.

(1) Bypass is prohibited, and the Director may take enforcement action against a 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 user submitted notices as required under Subsection D of this section.

(2) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed in Subsection B(1) of this section.

C. A user may allow any bypass to occur that 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 provisions of Subsections B and D of this section.

D. Notice.

(1) If a user knows in advance of the need for a bypass, it shall submit prior written notice to the Director at least 10 days before the date of the bypass, if possible.

(2) A user shall submit oral notice to the Director 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 time the user expects it to continue; and the steps taken or planned to reduce, eliminate, and prevent reoccurrence of the bypass. The Director may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.

E. Notwithstanding the above affirmative defenses, the user is not excused from cleaning up the violating discharge, as set forth in § 553-73G.