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 Paragraph 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 Joint Sewer Authority 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 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 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.
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 Section 2.1A of this Ordinance or the specific prohibitions in Sections 2.1B of this Ordinance 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 designed to prevent pass through and/or interference, as the case may be, 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 designed to prevent pass through and/or interference, as the case may be, exists, but the discharge did not change substantially in nature or constituents from the user's prior discharge when the Joint Sewer Authority 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.
B. 
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 provision of Paragraphs C and D of this section.
C. 
(1) 
If a user knows in advance of the need for a bypass, it shall submit prior notice to the Joint Sewer Authority, at least ten (10) days before the date of the bypass, if possible.
(2) 
A user shall submit oral notice to the Joint Sewer Authority of an unanticipated bypass that exceeds applicable pretreatment standards within twenty-four (24) hours from the time it becomes aware of the bypass. A written submission shall also be provided within five (5) 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 Joint Sewer Authority may waive the written report on a case-by-case basis if the oral report has been received within twenty-four (24) hours.
D. 
(1) 
Bypass is prohibited, and the Joint Sewer Authority may undertake an enforcement action against a 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
(c) 
The user submitted notices as required under Paragraph C of this section.
(2) 
The Joint Sewer Authority may approve an anticipated bypass, after considering its adverse effects, if the Joint Sewer Authority determines that it will meet the three conditions listed in Paragraph D(1) of this section.
(3) 
Appeal. An industrial user assessed with a civil penalty under the terms of this section shall have the right to file an appeal to contest either the amount of the penalty or the fact of the violation, within thirty (30) days of the assessment of the civil penalty, pursuant to the Local Agency Law, 2 Pa.C.S.A. Section 105 et seq. (relating to administrative law and procedure). Failure to appeal within this period shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.
A. 
Pursuant to the provisions of the Pennsylvania Publicly Owned Treatment Works Penalty Law, Act 9 of 1992, providing for enhanced penalty authority for publicly owned treatment works which are authorized to enforce industrial pretreatment standards for industrial waste discharges, and in addition to proceeding under any other remedy available at law or equity for violation of pretreatment standards and/or requirements, the Joint Sewer Authority, as the operator of the POTW, may assess a civil penalty upon an industrial user for violation of any of the terms and provisions of this Ordinance. The penalty may be assessed whether or not the violation was willful or negligent. The civil penalty shall not exceed twenty-five thousand dollars ($25,000) per day for each violation, regardless or jurisdictional boundaries. Each violation for each separate day shall constitute a separate and distinct defense under this section.
B. 
As part of any notice of assessment of civil penalties issued by the Joint Sewer Authority to an industrial user, there shall also be included a description of the applicable appeals process to be followed, including the name, address and telephone number of the person responsible for accepting such appeal, on behalf of the Joint Sewer Authority.
C. 
For purposes of this section, a single operational upset which leads to simultaneous violations of more than one pretreatment standard or requirement shall be treated as a single violation as required by federal Water Pollution Control Act. The Joint Sewer Authority may, however, recover its costs for reestablishing the operation of the treatment works in addition to any civil penalty imposed under this section.
D. 
The Joint Sewer Authority shall publicly adopt a formal, written civil penalty assessment policy and make it publicly available. Each industrial discharger participating in the pretreatment program shall be given written notice of the policy. The penalty assessment policy shall consider:
(1) 
Damage to air, water, land or other natural resources of the Commonwealth of Pennsylvania and their uses;
(2) 
Costs of restoration and abatement;
(3) 
Savings resulting to the person in consequence of the violation;
(4) 
History of past violations;
(5) 
Deterrence of future violations;
(6) 
Other relevant factors.
E. 
Uses for penalties. All civil penalties collected pursuant to this section shall be placed by the Joint Sewer Authority in a restricted account and shall only be used by the Joint Sewer Authority and the publicly owned treatment works for the following uses:
(1) 
The repair of damage and any additional maintenance needed or any additional costs imposed as a result of the violation for which the penalty was imposed;
(2) 
Pay any penalties imposed on the Joint Sewer Authority or the POTW by the federal or state government for violation of pretreatment standards;
(3) 
For the costs incurred by the Township or POTW to investigate and take the enforcement action that resulted in a penalty being imposed;
(4) 
For the monitoring of discharges in the pretreatment program and for capital improvements to the treatment works, including sewage collection lines, which may be required by the pretreatment program; and
(5) 
Any remaining funds may be used for capital improvements to the POTW, including collection lines.
F. 
Injunctive relief. The Joint Sewer Authority shall have the power to obtain injunctive relief to enforce compliance with or restrain any violation of any pretreatment standard or requirement pursuant to and in accordance with the provisions of Act 9 of 1992, and 40 CFR 403.8(f)(1)(vi)(A). Injunctive relief shall be available upon the showing of one or more of the following:
(1) 
A discharge from an industrial user presents an imminent danger or substantial harm to the POTW or the public;
(2) 
A discharge from an industrial user presents an imminent or substantial endangerment to the environment;
(3) 
A discharge from an industrial user causes the POTW to violate any condition of its discharge permit; or
(4) 
The industrial user has shown a lack of ability or intention to comply with a pretreatment standard.
Notwithstanding the preceding paragraph, an injunction affecting an industrial operation not directly related to the condition or violation in question may be issued if the court determines that other enforcement procedures would not be adequate to affect prompt correction of the condition or violation. In addition to an injunction, the court in any such proceedings may levy civil penalties in accordance with Act 9 of 1992 and this Ordinance.