[Ord. 1-96, 5/16/1996, § 901]
1. Definition. For purposes of this section, "upset" means an exception
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 workmanlike
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. 2017-07, 12/7/2017]
(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 proceeding, the user seeking
to establish the occurrence of any upset shall have the burden of
proof.
[Amended by Ord. No. 2017-07, 12/7/2017]
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.
[Ord. 1-96, 5/16/1996, § 902]
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in Subsection
2 of §
18-405 or the specific prohibitions in Subsection
3A through C and F through W of §
18-405, 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 passthrough 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 passthrough
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 biosolids
use or disposal requirements.
[Amended by Ord. No. 2017-07, 12/7/2017]
[Ord. 1-96, 5/16/1996, § 903]
1. Definitions. For purposes of this section:
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 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 essential maintenance to assure efficient operation. These bypassers 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. 2017-07, 12/7/2017]
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. 2017-07, 12/7/2017]
C. The written submission shall contain:
(1)
A description of the bypass and its cause.
(2)
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.
(3)
Steps taken or planned to reduce, eliminate and prevent reoccurrence
of the bypass.
4. Prohibition; Justification.
[Amended by Ord. No. 2017-07, 12/7/2017]
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.
(3)
The user submitted notices as required under Subsection
3, above.
B. The Township and the Director of Public Works may approve an anticipated bypass, after considering its adverse effects, if the Township and the Director of Public Works determines that it will meet the three conditions listed in Subsection
4A, above.