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 industrial 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 are met.
C.
An industrial 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 industrial 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;
(3)
The industrial user has submitted the following information to the
POTW and treatment plant operator within 24 hours of becoming aware
of the upset, if this information is provided orally, a written submission
must 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 anticipated time the noncompliance is expected
to continue.
(c)
Steps being taken and/or planned to reduce, eliminate and prevent
recurrence of the noncompliance.
D.
In any enforcement proceeding, the industrial user seeking to establish
the occurrence of an upset shall have the burden of proof.
E.
Industrial users will have the opportunity for a judicial determination
on any claim of upset in an enforcement action brought for noncompliance
with categorical pretreatment standards.
F.
The industrial user 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 has failed.
An industrial user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general and specific prohibitions in § 435-5 of this chapter if it can prove that it did not know or have reason to know that its discharge, along or in conjunction 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 industrial user
was in compliance with each limit directly prior to and during the
pass-through or interference; or
B.
No local
limit exists, but the prior discharge when the City of Las Vegas 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
Definitions. As used in this section, the following terms shall have
the meanings indicated:
The intentional diversion of waste streams from any portion
of an industrial 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.
C.
Notice.
(1)
If an industrial user knows in advance of the need for a bypass,
it shall submit prior notice to the POTW, at least 10 days before
the date of the bypass if possible.
(2)
An industrial user shall submit oral notice of an unanticipated bypass
that exceeds applicable pretreatment standards to the POTW 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 industrial
user becomes aware of the bypasses. 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 the steps taken
or planned to reduce, eliminate, and prevent reoccurrence of the bypass.
The POTW may waive the written report on a case-by-case basis if the
oral report has been received within 24 hours.
D.
Prohibition; exceptions.
(1)
Bypass is prohibited, and the POTW may take enforcement action against
an industrial 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
