(a) 
An upset shall constitute an affirmative defense to an enforcement action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (b) of this section are met.
(b) 
An industrial user who wishes to establish the affirmative defense of an upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant and reliable evidence, that:
(1) 
An upset occurred and the industrial user can identify the cause(s) of the upset;
(2) 
The facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures;
(3) 
The industrial user has submitted the following information to the control authority within 24 hours of becoming aware of the upset; for purposes of this subsection, an industrial user becomes aware when it knows, or reasonably should have known, the facts giving rise to a reporting obligation:
(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 at the time information is submitted under this subsection, the anticipated time the noncompliance is expected to continue, and why;
(C) 
The steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance. If the upset was caused by a reduction, loss, or failure of the power supply to the treatment facility, an industrial user shall take steps to control production of all wastestreams to the extent necessary until the treatment facility is restored or an alternative method of treatment is provided, or until such wastestreams can be temporarily stored for future treatment, or taken off site for treatment and disposal; and
(D) 
If an industrial user provides the information required by this subsection orally within 24 hours, the industrial user shall also provide the same information to the control authority in writing within five days thereafter.
(c) 
In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset shall have the burden of proof.
(Ord. 1685 § 3 (Exh. A), 2022)
(a) 
Causing a bypass by intentionally diverting wastestreams from any portion of a treatment facility is a violation of this chapter unless such bypass is specifically authorized by this section and the industrial user responsible for the bypass complies with all applicable requirements in this section.
(b) 
If approved by the control authority, an industrial user may allow a bypass to occur if it does not cause a violation of a pretreatment standard or requirement, or local limit, but only if the bypass is for essential maintenance to assure efficient operation. Bypasses under this subsection (b) are not subject to subsection (c) or (d) of this section, provided the bypass is compliant with this subsection.
(c) 
Any other bypass, whether planned or unanticipated, shall meet the following requirements as applicable:
(1) 
Industrial users knowing in advance of the need for a bypass shall submit written notice to the control authority, at least 10 days before the date of the bypass for approval by the control authority, if possible. Such notice shall include a description of the planned bypass (expected volume, pollutants, etc.), its expected duration, and the reason for such bypass. The control authority may approve such bypass, after considering its adverse effects, if it determines that the bypass will meet all conditions set forth in subsection (d) of this section.
(2) 
Industrial users shall notify the control authority of any unanticipated bypass that exceeds an applicable pretreatment standard or requirement, or a local limit, within 24 hours of becoming aware of such bypass. For purposes of this subsection, an industrial user becomes aware when it knows, or reasonably should have known, of the facts giving rise to a notification obligation. Industrial users shall provide a written follow-up report within five days of such bypass, unless waived by the control authority based on its determination that the industrial user's oral report was timely and complete. Unless waived by the control authority, written bypass reports shall contain the following information:
(A) 
A description of the bypass (volume, pollutants, etc.) and its cause;
(B) 
The date(s) and time(s) when the bypass started and ended;
(C) 
If the bypass has not been corrected, the anticipated time it is expected to continue; and
(D) 
The steps the industrial user has taken or planned to reduce, eliminate, and prevent recurrence of the bypass.
(d) 
The control authority may initiate an enforcement action authorized under this chapter against an industrial user for any bypass that violates this section; provided, that it shall be an affirmative defense to such an enforcement action if the industrial user can demonstrate that:
(1) 
The bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(2) 
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 the industrial user submitted notices as required under subsection (c) of this section.
(e) 
In any enforcement proceeding, the industrial user seeking to establish an affirmative defense shall have the burden of proof.
(f) 
The control authority may approve an anticipated bypass, after considering its adverse effects, if the control authority determines that it will meet the requirements of this section.
(Ord. 1685 § 3 (Exh. A), 2022)