An industrial user shall have an affirmative defense in any action brought against it alleging a violation of the prohibitions established in sections 13.07.351 and 13.07.352 if the user can demonstrate that:
(1) 
It did not know or have reason to know that its discharge, alone or in conjunction with a discharge or discharges from other sources, would cause pass through or interference; and
(2) 
A local limit designed to prevent pass through and/or interference, as the case may be, was developed for each pollutant in the user’s discharge that caused pass through or interference, and the user was in compliance with each such local limit directly prior to and during the pass through or interference; or
(3) 
If a local limit designed to prevent pass through and/or interference, as the case may be, has not been developed for the pollutant(s) that caused the pass through or interference, the user’s discharge, directly prior to and during the pass through or interference, did not change substantially in nature or constituents from the user’s prior discharge activity when the POTW was regularly in compliance with the POTW’s TPDES permit requirements and, in the case of interference, applicable requirements for sewage sludge use or disposal.
(Ordinance 6444 adopted 1/3/22)
(a) 
The act of God defense constitutes a statutory affirmative defense (Texas Water Code section 7.251) in an action brought in municipal or state court. If a person can establish that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot, or other catastrophe, the event is not a violation of the ordinance or permit.
(b) 
An industrial user who wishes to establish the act of God affirmative defense shall demonstrate, through relevant evidence that:
(1) 
An event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance occurred, and the sole cause of the event was an act of God, war, strike, riot or other catastrophe; and
(2) 
The industrial user has submitted the following information to the POTW and the city within 24 hours of becoming aware of the event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance (if this information is provided orally, a written submission must be provided within five days):
(A) 
A description of the event, and the nature and cause of the event;
(B) 
The time period of the event, including exact dates and times or, if still continuing, the anticipated time the event is expected to continue; and
(C) 
Steps being taken or planned to reduce, eliminate and prevent recurrence of the event.
(c) 
Burden of proof. In any enforcement proceedings, the industrial user seeking to establish the act of God affirmative defense shall have the burden of proving by a preponderance of the evidence that an event that would otherwise be a violation of a pretreatment ordinance, or a permit under the ordinance, was caused solely by an act of God, war, strike, riot or other catastrophe.
(Ordinance 6444 adopted 1/3/22)
(a) 
Definitions.
Bypass.
The intentional diversion of wastestreams from any portion of an industrial user’s pretreatment facility.
Severe property damage.
Substantial physical damage to property, damage to the pretreatment facilities which causes them to become inoperable, or substantial and permanent loss of natural resources which can reasonably be expected to occur in the event of a bypass. Severe property damage does not mean economic loss caused by delays in production.
(b) 
Prohibition of bypass.
(1) 
Bypass is prohibited, and the control authority may take enforcement action against an industrial 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 industrial user submitted notices as required under subsection (c) of this section.
(2) 
The control authority may approve an anticipated bypass after considering its adverse effects if the control authority determines that it will meet the three (3) conditions listed in subsection (b)(1) of this section.
(c) 
Notice.
(1) 
If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the control authority, if possible at least ten (10) days before the date of the bypass.
(2) 
An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the control authority 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 industrial 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 recurrence of the bypass. The control 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) 
An industrial 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 provisions of subsections (b) and (c) of this section.
(Ordinance 6444 adopted 1/3/22)