[R.O. 2011 § 710.600; Ord. No. 17-184 § 1, 9-20-2017]
A.
For the purposes of this Section, "upset"
means an exceptional incident in which there is unintentional and
temporary non-compliance with categorical Pretreatment Standards because
of factors beyond the reasonable control of the User. An upset does
not include non-compliance 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 non-compliance with categorical Pretreatment Standards if the requirements of Subsection (C), below, are met.
C.
A User who desires to establish the affirmative
defense of upset shall demonstrate, through properly signed, contemporaneous
operating logs, or other relevant evidence that:
1.
An upset occurred and the User can
identify the cause(s) of the upset;
2.
The facility was at the time being
operated in a prudent and workman-like manner and in compliance with
applicable operation and maintenance procedures; and
3.
The User has submitted the following
information to the Director of Public Works within twenty-four (24)
hours of becoming aware of the upset [if this information is provided
orally, a written submission must be provided within five (5) days]:
a.
A description of the indirect discharge
and cause of non-compliance;
b.
The period of non-compliance, including
exact dates and times or, if not corrected, the anticipated time the
non-compliance is expected to continue; and
c.
Steps being taken and/or planned
to reduce, eliminate, and prevent recurrence of the non-compliance.
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 non-compliance with categorical Pretreatment Standards.
F.
Users shall control production of all discharges
to the extent necessary to maintain compliance with categorical 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.
[R.O. 2011 § 710.610; Ord. No. 17-184 § 1, 9-20-2017]
A.
For the purposes of this Section.
1.
The word "bypass" means the intentional
diversion of wastestreams from any portion of a User's treatment facility.
2.
The words "severe property damage"
mean substantial physical damage to property, damage to the treatment
facilities which causes them to become inoperable, or substantial
and permanent loss of natural resources which 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.
C.
Bypass Notifications.
1.
If a User knows in advance of the
need for a bypass, it shall submit prior notice to the Director of
Public Works, at least ten (10) days before the date of the bypass,
if possible.
2.
A User shall submit oral notice to
the Director of Public Works of an unanticipated bypass that exceeds
applicable Pretreatment Standards within twenty-four (24) hours from
the time it becomes aware of the bypass. A written submission shall
also be provided within five (5) 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.
The Director of Public Works may waive the written report on a case-by-case
basis if the oral report has been received within twenty-four (24)
hours.
D.
Bypass.
1.
Bypass is prohibited, and the Director
of Public Works may take an 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
back-up 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
