§ 50.402  AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS.
   (A)   Upset.
      (1)   An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if criteria set out in division (A)(2) below are met.
      (2)   A contributor 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 contributor can identify the cause(s) of the upset;
         (b)   The facility was at the time being operated in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; and
         (c)   The contributor has submitted the following information to the POTW Director within 24 hours of becoming aware of the upset (if the information is provided orally, a written submission must be provided within five days):
            1.   A description of the indirect discharge and cause of noncompliance;
            2.   The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and
            3.   Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance.
      (3)   In any enforcement proceeding, the contributor seeking to establish the occurrence of an upset shall have the burden of proof.
      (4)   A contributor 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.
      (5)   A contributor 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.
   (B)   Prohibited discharge standards defense. A contributor shall have an affirmative defense to an enforcement action brought against or for noncompliance with the general prohibitions in § 50.328(A)(1) of this chapter or the specific prohibitions in § 50.328(A)(2)(b), (d) through (l) and (n) through (v) of this chapter, 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:
      (1)   A local limit exists for each pollutant discharge and the contributor was in compliance with each limit directly prior to, and during, the pass through or interference; or
      (2)   No local limit exists, but the discharge did not change substantially in nature or constituents from the contributor’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.
   (C)   Bypass.
      (1)   A contributor may allow any bypass to occur that 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 provision of divisions (C)(2) and (C)(3) below.
      (2)   If a contributor knows in advance of the need for a bypass, it shall submit prior notice to the POTW Director, at least ten days before the date of the bypass, if possible. If the contributor learns of need to bypass less than ten days before the date of the bypass, then it must notify the POTW Director immediately.
         (a)   A contributor shall promptly notify the POTW Director of an unanticipated bypass that exceeds applicable pretreatment standards, in no case less than 24 hours from the time it becomes aware of the bypass.
         (b)   A written submission must also be provided within five days of the time the contributor becomes aware of the bypass. A 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.
      (3)   Unless it has been allowed, bypass is prohibited and the POTW Director may take an enforcement action against a contributor for a bypass.
(Ord. passed 6-21-2011; Am. Ord. passed 12-13-2012)