A.
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 control of the
user. Upset does not mean noncompliance to the extent caused by operational
error, improperly designed treatment facilities, inadequate treatment
facilities, lack of preventive maintenance.
B.
An upset is an affirmative defense to an action brought for noncompliance with Categorical Pretreatment Standards if the requirements of subsection C, are met.
C.
A user
who wishes to establish the affirmative defense of upset must demonstrate,
through properly signed, contemporaneous, operating logs, or other
competent evidence that:
1.
An
upset occurred and the user can identify the cause(s) of the upset;
2.
The
facility at the time of the upset was being operated in a prudent
and workman-like manner and in compliance with applicable operation
and maintenance procedures; and
3.
The
user has submitted the following information to the pretreatment coordinator
within twenty-four hours of becoming aware of the upset; if this information
is provided orally, a written submission must be provided within five
days:
a.
A description of the indirect discharge and cause of noncompliance,
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 that have been, are being or are planned to be taken to reduce,
eliminate, and prevent recurrence of the noncompliance.
D.
In
any enforcement proceeding, the user seeking to establish the occurrence
of an upset has the burden of proof.
E.
A user
may request a judicial determination on any claim of upset only in
an enforcement action brought for noncompliance with Categorical Pretreatment
Standards.
F.
A user
must control all discharges to the extent necessary to maintain compliance
with Categorical Pretreatment Standards upon reduction, loss, or failure
of its pretreatment 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 pretreatment facility is reduced, lost, or fails.
(Ord. 757 § 13, 2010; Ord. 816 § 4, 2019)
A user has an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in Section 13.40.050(A) of this chapter or the specific prohibitions in Sections 13.40.050(B) (excluding numbers (1), (2) and (8)), 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 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
B.
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. 757 § 13, 2010; Ord. 816 § 4, 2019)
A.
For
the purposes of this section:
1.
Bypass
means the intentional diversion of wastestreams from any portion of
a user's pretreatment facility.
2.
Severe
property damage means substantial physical damage to property, damage
to the POTW that causes them to become inoperable, or substantial
and permanent loss of natural resources that 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 must submit prior
notice to the pretreatment coordinator, at least ten days before the
date of the bypass.
2.
A
user must submit oral notice to the pretreatment coordinator of an
unanticipated bypass that exceeds applicable Pretreatment Standards
within twelve hours from the time it becomes aware of the bypass.
A written submission must also be provided within five days of the
time the user becomes aware of the bypass. The written submission
must 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.
D.
Bypass.
1.
Except
as expressly provided in this chapter, bypass is prohibited, and the
pretreatment coordinator may take an enforcement action against a
user for a bypass, unless:
a.
Bypass was required to prevent loss of life, personal injury, or
substantial damage to property not belonging to the user;
b.
There were no feasible alternatives to the bypass, such as the use
of auxiliary treatment facilities, retention of untreated wastes or
maintenance during scheduled periods of equipment shut down. 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 that occurred during scheduled periods of equipment
shutdown or preventive maintenance; and
(Ord. 757 § 13, 2010; Ord. 816 § 4, 2019)
