A.
For the purpose of this section, "upset" means an exceptional incident
in which there is unintentional and temporary noncompliance with effluent
limitations 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 effluent limitations if the requirements of Subsection C below are met.
C.
The 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 prudent and workmanlike
manner and in compliance with applicable operation and maintenance
procedures; and
(3)
The user has submitted the following information to the Township
within 24 hours of becoming aware of the upset; if this information
is provided orally, a written submission must be provided within five
days to include the following:
(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 any 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 proceedings 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 of any
claim of upset only in an enforcement action brought for noncompliance
with effluent limitations.
F.
Users shall control production of all discharges to the extent necessary
to maintain compliance with effluent limitations 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 general prohibitions in § 385-22A or the specific prohibitions in § 385-22B(1), (2), (4), (5) or (16) 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 discharge 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 discharge limit exists, but the discharge did not change substantially
in nature or constituents from the user's prior discharge when the
Township was regularly in compliance with its NJPDES permit and, in
the case of interference, was in compliance with applicable sludge
use or disposal requirements.
A.
Anticipated bypass.
(2)
A user may assert an anticipated bypass as an affirmative defense
if a user knows in advance of the need for a bypass and submits prior
notice to the Township for approval, at least 10 days before the date
of the bypass, if possible, and if the user is able to demonstrate
that the bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage.
B.
Unanticipated bypass.
(1)
A user shall submit oral notice to the Township of an unanticipated
bypass that exceeds applicable pretreatment standards within 24 hours
from the time it becomes aware of the bypass; or
(2)
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 the following in accordance with N.J.A.C. 7:14A-6.10(f),
as amended:
(a)
All properly signed, contemporaneous operating logs, or other
relevant evidence on the circumstances of the noncompliance;
(b)
The reasons that the unanticipated bypass occurred, including
the circumstances leading to the unanticipated bypass;
(c)
Evidence that the permittee was properly operating the facility
at the time;
(d)
Evidence that the permittee submitted notice of the unanticipated
bypass as required above, including the name, title, address and telephone
number of the individual who satisfied this requirement, the date
and specific time the individual notified the Township for the permittee,
the specific method that the individual used to notify the Township,
and the name and title of the individual within the Township to whom
the permittee gave such notice;
(e)
Evidence that the permittee complied with all remedial measures
the Township required;
(f)
The permittee's rationale for and all supporting documentation
that the bypass was unavoidable to prevent loss of life, personal
injury, or severe property damage, including the name, title, address
and telephone number of the individual that made the determination
of the permittee, the data and information upon which that individual
made the determination, and any other information the Township requests;
(g)
Evidence that there was no feasible alternative to the unanticipated
bypass, including, but not limited to, the use of auxiliary treatment
facilities, retention of untreated wastes, or maintenance during periods
of downtime;
(h)
Evidence that the unanticipated bypass did not occur during
normal periods of equipment downtime or preventive maintenance when
backup equipment should have been installed to avoid the unanticipated
bypass; and
C.
Affirmative defense. The user may assert an unanticipated bypass
as an affirmative defense, if:
(1)
Bypass was unavoidable to prevent loss of life, personal injury,
or severe property damage; or
(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 preventive
maintenance; and
Except as provided in Subsection A below, a violator may be
entitled to an affirmative defense to liability for a violation of
an effluent limitation occurring as a result of a testing or laboratory
error, only if, in the determination of the Township, the violator
has satisfied the provisions of this section.
A.
A violator shall not be entitled to an affirmative defense based
on an alleged testing or laboratory error to the extent that the violation
is caused by operational error, improperly designed treatment facilities,
inadequate treatment facilities, lack of preventative maintenance,
or careless or improper operation.
B.
A violator shall be entitled to an affirmative defense only if, in
the determination of the Township, the violator satisfies the following:
(1)
The violation occurred as a result of testing or laboratory error;
(2)
The violator complied with all of the requirements in N.J.A.C. 7:14A-6.10;
(3)
The violator complied with N.J.A.C. 7:14-8.3; and
(4)
A violator asserting a testing or laboratory error as an affirmative
defense shall also have the burden to demonstrate that a violation
involving the exceedance of an effluent limitation was the result
of unanticipated test interferences, sample contamination, analytical
defects or procedural deficiencies in sampling, or other similar circumstances
beyond the violator's control.
