[Ord. No. 3393 §1, 4-20-2010]
A.
For
the purposes of this Section, "upset" means an exceptional
incident in which there is unintentional and temporary non-compliance
with categorical pretreatment standards because of factors beyond
the reasonable control of the user. An upset does not include non-compliance
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 non-compliance 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 workmanlike
manner and in compliance with applicable operation and maintenance
procedures; and
3.
The user has submitted the following information to the Superintendent
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 non-compliance;
b.
The period of non-compliance, including exact dates and times or,
if not corrected, the anticipated time the non-compliance is expected
to continue; and
c.
Steps being taken and/or planned to reduce, eliminate and prevent
recurrence of the non-compliance.
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 non-compliance
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.
[Ord. No. 3393 §1, 4-20-2010]
A.
A user shall have an affirmative defense to an enforcement action brought against it for non-compliance with the general prohibitions in Section 725.050(A) of this Chapter or the specific prohibitions in Section 725.050(B)(3 — 18) of this Chapter 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:
1.
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
2.
No local limit exists, but the discharge did not change substantially
in nature or constituents from the user's prior discharge when the
City was regularly in compliance with its NPDES permit and, in the
case of interference, was in compliance with applicable sludge use
or disposal requirements.
[Ord. No. 3393 §1, 4-20-2010]
A.
For
the purposes of this Section,
1.
"Bypass" means the intentional diversion of wastestreams
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 Superintendent at least ten (10) days before the
date of the bypass, if possible.
2.
A user shall submit oral notice to the Superintendent 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 Superintendent may waive the written report on
a case-by-case basis if the oral report has been received within twenty-four
(24) hours.
D.
Bypass.
1.
Bypass is prohibited and the Superintendent may take 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 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
