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 reasonable control of the user. An upset does not include
noncompliance with a local limit, best management practice, or wastewater
discharge permit requirements other than a categorical pretreatment
standard. An upset also 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.
B.
An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of Subsection C, below, are met.
C.
A user who wishes to establish the affirmative defense
of upset shall demonstrate, through properly signed, contemporaneous
operating logs, or other relevant evidence that:
(1)
An upset occurred and the user can identify the cause(s)
of the upset;
(2)
The facility was at the time being operated in a prudent
and workmanlike manner and in compliance with applicable operation
and maintenance procedures; and
(3)
The user has submitted the following information to
the Superintendent within 24 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 being taken and/or planned to reduce,
eliminate and prevent recurrence of the noncompliance.
D.
In any enforcement proceeding, the user seeking to
establish the occurrence of an upset shall have the burden of proof.
E.
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.
F.
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.
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 146-44A or the specific prohibitions in § 146-44B(3) through (7) 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 Town was regularly in compliance with its NPDES permit, and
in the case of interference, was in compliance with applicable sludge
use or disposal requirements.
A.
For the purposes of this section:
(1)
"Bypass" means the intentional diversion of waste
streams from any portion of a user's treatment facility.
(2)
"Severe property damage" means 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.
C.
Notice to Superintendent.
(1)
If a user knows in advance of the need for a bypass,
it shall submit prior notice to the Superintendent, at least 10 days
before the date of the bypass, if possible.
(2)
A user shall submit oral notice to the Superintendent
of an unanticipated bypass that exceeds applicable pretreatment standards
within 24 hours from the time it becomes aware of the bypass. A written
submission shall also be provided within five 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 Superintendent may waive the written report on a case-by-case
basis if the oral report has been received within 24 hours.
D.
Bypass prohibited; approval of anticipated bypass.
(1)
Bypass is prohibited, and the Superintendent 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 permanent or temporary cessation or reduction of production,
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
(2)
The Superintendent may approve an anticipated bypass, after considering its adverse effects, if the Superintendent determines that it will meet the three conditions listed in Subsection D(1) of this section.
(3)
A bypass meeting the above criteria is only a defense to the prohibition against bypass contained in Subsection D(1) above and such other permit conditions that the Town authorizes on a case-by-case basis. In no event shall a bypass cause interference, pass-through, or otherwise cause the Town's POTW to be in noncompliance with applicable requirements. The Town may establish such preconditions to a bypass as it deems appropriate to, among other things, protect the Town's POTW, human health and the environment.
