In an action brought in federal court only:
(1) For the purposes of this section, “upset” means an exceptional
incident in which there is unintentional and temporary noncompliance
with categorical pretreatment standards 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.
(2) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection
(3) below are met.
(3) A user who wishes to establish the affirmative defense of upset shall
demonstrate, through properly signed, contemporaneous operating logs,
or other relevant evidence, that:
(A) An upset occurred and the user can identify the cause(s) of the upset;
(B) The facility was at the time being operated in a prudent and workmanlike
manner and in compliance with applicable operation and maintenance
procedures; and
(C) The user has submitted the following information to the DCO 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:
(i) A description of the indirect discharge and cause of noncompliance;
(ii)
The period of noncompliance, including exact dates and times
or, if not corrected, the anticipated time the noncompliance is expected
to continue; and
(iii)
Steps being taken and/or planned to reduce, eliminate, and prevent
recurrence of the noncompliance.
(4) In any enforcement proceeding, the user seeking to establish the
occurrence of an upset shall have the burden of proof.
(5) Users will have the opportunity for a judicial determination on any
claim of upset only in an enforcement action brought for noncompliance
with categorical pretreatment standards.
(6) 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.
(2005 Code, sec. 13.4.180)
In an action brought in municipal or state court only:
(1) An event that would otherwise be a violation that is caused solely
by an act of God, war, strike, riot, or other catastrophe is not a
violation.
(2) In any enforcement proceeding, the user seeking to establish the
occurrence of an act of God, war, strike, riot, or other catastrophe
shall have the burden of proof.
(3) In the event that subsections
(1) and
(2) above have been demonstrated the user shall control production 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 provided.
(2005 Code, sec. 13.4.181)
(a) Definitions.
For the purposes of this section:
Bypass.
The intentional diversion of wastestreams from any portion
of a user’s treatment facility.
Severe property damage.
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.
(b) Bypass not exceeding applicable standards.
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 provisions of subsections
(c) and
(d) of this section.
(c) Notice of bypass.
(1) If a user knows in advance of the need for a bypass, it shall submit
prior notice to the DCO, at least ten (10) days before the date of
the bypass, if possible.
(2) A user shall submit oral notice to the DCO 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 DCO may waive the written report on a case-by-case
basis if the oral report has been received within twenty-four (24)
hours.
(d) Prohibited and allowable bypass.
(1) Bypass is prohibited, and the DCO 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 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 user submitted notices as required under subsection
(c) of this section.
(2) The DCO may approve an anticipated bypass, after considering its adverse effects, if the DCO determines that it will meet the three conditions listed in subsection
(d)(1) of this section.
(2005 Code, sec. 13.4.182)