(A) Upset.
(1) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of division (2) below are met.
(2) A user 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 user 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 user has submitted the following information to the Director within 24 hours of becoming aware of the upset: (If this 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 user seeking to establish the occurrence of an upset shall have the burden of proof.
(4) A user 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 user shall control production of all discharge 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 user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 51.47 or the specific prohibitions in § 51.48(A)(2), (3) and (5) through (7), 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:
(1) 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
(2) No local limit exists, but the discharge did not change substantially in nature of constituents from the user’s prior discharge when the county 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) Bypass is prohibited, and the Director 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 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 judgement to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and
(c) The user submitted notices and received approval to the bypass initiation.
(2) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed in division (C)(1) of this section.
(Ord. passed 9-9-08)