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 industrial user. An upset does
not include noncompliance to the extent caused by operational error,
improperly designed treatment facilities, inadequate treatment facilities,
lack or 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 are met.
C.
An industrial 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 industrial 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.
(3)
The industrial user has submitted the following information
to the POTW and treatment plant operator 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:
(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.
(c)
Steps being taken and/or planned to reduce,
eliminate and prevent recurrence of the noncompliance.
D.
In any enforcement proceeding, the industrial user
seeking to establish the occurrence of an upset shall have the burden
of proof.
E.
Industrial 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.
The industrial user shall control production or 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.
An industrial user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general and specific prohibitions in § 190-16 of this Part 2 if it can prove that it did not know or have reason to know that its discharge, along or in conjunction with discharges from other sources, would cause pass through or interference and that either a local limit exists for each pollutant discharged and the industrial user was in compliance with each limit directly prior to and during the pass through or interference, or 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.
BYPASS
SEVERE PROPERTY DAMAGE
Definitions. As used in this section, the following
terms shall have the meanings indicated:
The intentional diversion of waste streams from any portion
of an industrial user's treatment facility.
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.
(1)
If an industrial user knows in advance of the need
for a bypass, it shall submit prior notice to the POTW, at least ten
(10) days before the date of the bypass, if possible.
(2)
An industrial user shall submit oral notice of an
unanticipated bypass that exceeds applicable pretreatment standards
to the POTW 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 industrial 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 POTW may waive
the written report on a case-by-case basis if the oral report has
been received within twenty-four (24) hours.
D.
Prohibitions; exceptions.
(1)
Bypass is prohibited, and the POTW may take enforcement
action against an industrial 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
