(A) Act of God. If an industrial user can establish that an event that would otherwise be a violation of this subchapter, or a violation of a permit issued pursuant to this subchapter, was caused solely by an act of God, war, strike, riot, or other catastrophe, the event is not a violation of this subchapter or permit.
(1) Act of God defense.
(a) Act of God defense. The act of God defense constitutes a statutory affirmative defense in an action brought in municipal or state court. If a person can establish that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot or other catastrophe, the event is not a violation of the ordinance or permit.
(b) An industrial user who wishes to establish the act of God affirmative defense shall demonstrate, through relevant evidence that:
1. An event that would otherwise be a violation of pretreatment ordinance or a permit issued under the ordinance occurred, and the sole cause of the event was an act of God, war, strike, riot or other catastrophe; and
2. The industrial user has submitted the following information to the POTW and the city within 24 hours of becoming aware of the event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance (if this information is provided orally, a written submission must be provided within five days):
a. A description of the event, and the nature and cause of the event;
b. The time period of the event, including exact dates and times or, if still continuing, the anticipated time the event is expected to continue; and
c. Steps being taken or planned to reduce, eliminate and prevent recurrence of the event.
(c) Burden of proof. In any enforcement proceeding, the industrial user seeking to establish the act of God affirmative defense shall have the burden of proving by a preponderance of the evidence that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot or other catastrophe.
(B) General/specific prohibitions. An industrial user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general and specific prohibitions in § 51.073 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 local limit exists for each pollutant discharged and the industrial user was in compliance with each local limit directly prior to, and during, the pass through or interference event, or that 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 TPDES, NPDES, or TCEQ permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.
(C) Bypass.
(1) (a) BYPASS. The intentional diversion of waste streams from any portion of an industrial user's treatment facility.
(b) SEVERE PROPERTY DAMAGE. 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 presence of a bypass. Severe property damage does not mean economic loss caused by delays in production.
(2) An industrial user may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it also is for essential maintenance to assure efficient operation and the Superintendent is properly notified. These bypasses are not subject to the provision of division (C)(3) and (4) of this section.
(3) (a) If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the POTW, at least ten days before the date of the bypass or as soon as forseeable.
(b) An industrial user shall submit an oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the POTW 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 industrial user becomes aware of the bypass. The written submission shall contain a description of the bypass, including exact dates and times, and, if the bypass has 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 24 hours.
(4) (a) Bypass is prohibited, and the POTW may take enforcement action against an industrial user for a bypass, unless:
1. 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
3. The industrial user submitted notices as required under division (C)(3) of this section.
(b) The POTW may approve an anticipated bypass, after considering its adverse effects, if the POTW determines that it will meet the three conditions listed in division (C)(4)(a) of this section.
(Ord. 12-1994-59, passed 12-13-94; Am. Ord. 08-2003-32, passed 4-26-03; Am. Ord. 02-2006-16, passed 2-28-06; Am. Ord. 04-2020-24, passed 4-14-20)