[Ord. 1995-15, 12/21/1995; as amended by Ord. 2013-05, 7/18/2013,
§ XXV]
1.
Definition. For 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 preventative
maintenance, or careless or improper operation.
2.
Affirmative Defense. An upset shall constitute an affirmative defense
to an action brought for noncompliance with categorical pretreatment
standards if the user shall demonstrate, through properly signed,
contemporaneous operating logs or other relevant evidence, that:
A.
An upset occurred and the user can identify the cause(s) of the upset.
B.
The facility was at the time being operated in a prudent and workman-like
manner and in compliance with applicable operation and maintenance
procedures.
C.
The user has submitted the following information to the Township
and the Director of Public Works within 24 hours of becoming aware
of the upset. If this information is provided orally, a written submission
must be provided within five calendar days:
[Amended by Ord. No. 2020-04, 10/1/2020]
(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.
(3)
Steps being taken and/or planned to reduce, eliminate, and prevent
recurrence of the noncompliance.
3.
Burden of Proof. In any enforcement action, the user seeking to establish
the occurrence of an upset shall have the burden of proof.
4.
Limitation. Users will have the opportunity for a judicial determination
on any claim of upset only in an enforcement action brought for noncompliance
with categorical pretreatment standards.
5.
Discharge Control. 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.
[Ord. 1995-15, 12/21/1995]
1.
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 18-504, Subsection 1B, or the specific prohibitions in § 18-504, Subsection 1C(A)(1) — (3), (6) — (23), if the user can prove that it did not know, or have reason to know, that its discharge, alone or in combination with discharges from other sources, would cause pass through or interference, and that either:
A.
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.
B.
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.
[Ord. 1995-15, 12/21/1995]
1.
BYPASS
SEVERE PROPERTY DAMAGE
Definitions. For purposes of this section:
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 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.
2.
Bypass Permitted for Certain Maintenance. A user may allow any bypass to occur which 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 3 and 4.
3.
Notice.
A.
If a user knows in advance of the need for a bypass, it shall submit
prior notice to the Township and the Director of Public Works at least
10 days before the date of the bypass, if possible.
[Amended by Ord. No. 2020-04, 10/1/2020]
B.
A user shall submit oral notice to the Township and the Director
of Public Works of an unanticipated bypass that exceeds applicable
pretreatment standards within 24 hours after the time the user becomes
aware of the bypass. A written submission shall also be provided within
five calendar days after the time the user becomes aware of the bypass,
unless the oral report was received within 24 hours and the written
report is waived by the Township and the Director of Public Works
on a case-by-case basis.
[Amended by Ord. No. 2020-04, 10/1/2020]
C.
The written submission shall contain:
4.
Prohibition; Justification.
[Amended by Ord. No. 2020-04, 10/1/2020]
A.
Bypass is prohibited, and the Township or the Director of Public
Works may take enforcement action against a user for a bypass, unless:
(1)
Bypass was unavoidable to prevent loss of life, personal injury,
or severe property damage.
(2)
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 preventative
maintenance.
