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.
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.
A.
BYPASS
SEVERE PROPERTY DAMAGE
For the purposes of this section, the following terms shall have
the meanings indicated:
The intentional diversion of waste streams from any portion
of a user's treatment facility.
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
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.