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.
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.