(a)
A
user who wishes to establish an affirmative defense for a discharge
violation event shall demonstrate, through properly signed, contemporaneous
operating logs, or other relevant evidence that:
(1)
The event and resulting violation was caused solely by an act of
God, war, strike, riot, or other catastrophe as defined by the Texas
Water Code, section 7.251, as amended.
(2)
The user must submit the following information verbally to the director
within twenty-four (24) hours and in writing within five (5) days
of becoming aware of the event:
(A)
A description and cause of the noncompliant discharge;
(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.
(3)
In an action brought in municipal or state court, if the user can establish that an event that would otherwise be a violation of a pretreatment ordinance or permit issued under this division was solely caused by a circumstance in subsection (a)(1) of this section, the event is not a violation of this division or permit.
(b)
In
any enforcement proceeding, the user seeking to establish an affirmative
defense shall have the burden of proof.
(c)
Users
will have the opportunity for a judicial determination on any claim
of the applicability of an affirmative defense only in an enforcement
action brought for noncompliance with pretreatment standards.
(d)
Users
shall control production and quality of all discharges to the extent
necessary to maintain compliance with pretreatment standards upon
reduction, loss, or failure of its treatment facility until the facility
is restored or an alternative method of treatment is primary source
of power of the treatment facility is reduced, lost, or fails.
(Ordinance 2011-01, sec. 1, adopted 1/11/11)
(a)
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 subsections (c) and (d) of this section unless requested by the director.
(b)
Bypass.
(1)
If a user knows in advance of the need for a bypass, it shall submit
prior notice to the director at least ten (10) days before the date
of the bypass, if possible.
(2)
A user shall submit oral notice to the director of 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 recurrence
of the bypass. The director may waive the written report on a case-by-case
basis if the oral report has been received within twenty-four (24)
hours.
(c)
Bypass exceptions.
(1)
Bypass is prohibited, and the director 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 was no feasible alternative to the bypass, such as the use
of auxiliary treatment facilities, retention of untreated wastes,
or maintenance during normal periods of equipment downtime or preventive
maintenance. 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
(Ordinance 2011-01, sec. 1, adopted 1/11/11)
