[R.O. 1993 § 710.630; Ord. No.
2669 § 13.1, 2-8-1999]
A.
For the purpose 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 wishes 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
workmanlike manner and in compliance with applicable operation and
maintenance procedures; and
3.
The user has submitted the following information to the Superintendent
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 will 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. 1993 § 710.640; Ord. No.
2669 § 13.2, 2-8-1999]
A.
A user shall have an affirmative defense to an enforcement action brought against it for non-compliance with the general prohibitions in Section 710.050(A) of this Chapter or the specific prohibitions in Sections 710.050(B)(3) through 710.050(B)(7) of this Chapter if it can prove 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 directly 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.
[R.O. 1993 § 710.650; Ord. No.
2669 § 13.3, 2-8-1999]
A.
For the purposes of this Section:
1.
"By-pass" means the intentional diversion of waste streams from
any portion of a user's treatment facility.
2.
"Severe property damage" means 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 by-pass.
Severe property damage does not mean economic loss caused by delays
in production.
C.
Notice To Operator Of Need For By-Pass.
1.
If a user knows in advance of the need for a by-pass, it shall
submit prior notice to the Superintendent, at least ten (10) days
before the date of the by-pass, if possible.
2.
A user shall submit oral notice to the Superintendent of an
unanticipated by-pass that exceeds applicable pretreatment standards
within twenty-four (24) hours from the time it becomes aware of the
by-pass. A written submission shall also be provided within five (5)
days of the time the user becomes aware of the by-pass. The written
submission shall contain a description of the by-pass and its cause;
the duration of the by-pass, including exact dates and times, and,
if the by-pass 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 by-pass. The Superintendent may waive
the written report on a case-by-case basis if the oral report has
been received within twenty-four (24) hours.
D.
By-Pass Prohibited — When.
1.
By-pass is prohibited, and the Superintendent may take an enforcement
action against a user for a by-pass, unless:
a.
By-pass was unavoidable to prevent loss of life, personal injury,
or severe property damage;
b.
There were no feasible alternatives to the by-pass, 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 by-pass which occurred during normal periods of equipment
downtime or preventive maintenance; and
