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 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, 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 workman-like
manner and in compliance with applicable operation and maintenance
procedures; and
(3)
The user has submitted the following information to the POTW-TP or
MTMSA 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; and
(c)
Steps being taken and/or planned to reduce, eliminate, and prevent
recurrence of the noncompliance.
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 noncompliance
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.
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 187-5A of this Part 1 or the specific prohibitions in § 187-5B of this Part 1 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:
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; or
B.
No local limit exists, but the discharge did not change substantially
in nature or constituents from the user's prior discharge when the
POTW-TP 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.
For the purposes of this section:
(1)
"Bypass" 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 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 POTW-TP or MTMSA, at least 10 days before the
date of the bypass, if possible.
(2)
A user shall submit oral notice to the POTW-TP or MTMSA of an unanticipated
bypass that exceeds applicable pretreatment standards 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 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
POTW-TP or MTMSA may waive the written report on a case-by-case basis
if the oral report has been received within 24 hours.
D.
Bypass.
(1)
Bypass is prohibited, and an enforcement action against a user for
a bypass may be undertaken 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
