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SUBDIVISION K: AFFIRMATIVE DEFENSES TO DISCHARGE VIOLATIONS
(A) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of paragraph (B), below, are met.
(B) 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 workman like manner and in compliance with applicable operation and maintenance procedures; and
(3) The user has submitted the following information to the POTW 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:
(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.
(C) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(D) 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.
(E) 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.
(Ord. passed 5-17-94; Am. Ord. passed 11-20-12)
A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 15-126(A) of this division or the specific prohibitions in § 15-126(B)(9) through (23) of this division 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 city 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) A 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. These bypasses are not subject to the provision of division (B) and (C) of this section.
(B) (1) If a user 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.
(2) A user shall submit oral notice to the POTW Director 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 this 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 POTW Director may waive the written report on a case by case basis if the oral report has been received within 24 hours.
(C) (1) Bypass is prohibited, and the POTW 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 judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
(c) The user submitted notices as required under division (B) above.
(2) The POTW Director may approve an anticipated bypass, after considering its adverse effects, if the POTW Director determines that it will meet the three conditions listed in division (C)(1)above.
(Ord. passed 5-17-94)
Section
15-211 Purpose of article
15-211.1 Extension of services outside the city limits
15-212 Prerequisites for permission
15-213 Submission of plans and specifications for approval
15-214 Prerequisites for connection
15-215 Unauthorized connection prohibited; penalty
15-216 Cooperative agreements for extension of waterlines; authority to require larger lines
15-217 City participation
15-218 Creation of water and sewer development account
15-219 Receipt of applications
15-220 Special conditions precedent to participation
15-221 Exceptions
It is the intent and purpose of this article to provide an orderly method whereby the water and sewerage systems of the city may be extended by individuals, corporations, subdividers and others and to authorize the provision of water and sewer utility outside the corporate limits of the city under specified circumstances with the approval of the City Council. It is the further intent of this article to ensure that the city’s utility infrastructure is efficient and that it operates in the best interests of the city and its residents.
(1989 Code, § 16-211) (Am. Ord. passed 9-19-06)
(A) Except under certain conditions the city will provide water and sewer utility services only to properties within the corporate limits of the city and will only allow the extension of such lines to serve properties that are within the corporate limits of the city. No water or sewer service shall be provided to any property outside the corporate limits of the city unless the owner of the property petitions for voluntary annexation and the City Council approves that annexation prior to the receipt of water and or sewer services, or the City Council approves an exception to this section.
(B) A property owner may be permitted to connect onto an existing city water and or sewer line when annexation of the site is judged by the City Council to be premature and when the following conditions are met:
(1) All plumbing fixtures and facilities shall be in compliance with the appropriate building codes and or County Health Department regulations.
(2) All owners must execute a written agreement with the city committing to submit a voluntary annexation upon request by the city.
(3) The City Council may approve the provision of water and sewer utility services to serve other jurisdictions, government entities or private utilities.
(4) Any property that is outside the city limits and is already served by city water and or sewer shall be deemed exempt from these provisions. However, no further extensions or increases may be made on affected property without permission from the city.
(C) Prior to a property authorized by the City Council as an exception to this section receiving water and or sewer services all owners must execute an agreement with the city. This document shall be recorded in the Office of the Register of Deeds of Rockingham County. In such agreement and in return for water and or sewer service, the property owners shall declare and agree that as long as the property remains outside the corporate limits the property shall be subject to the following conditions:
(1) The property shall be subject to the city’s outside water and or sewer rate schedule.
(2) That the property shall not be further divided or subdivided to create more lots or principal building sites.
(3) That the property owner or their successors and assigns, upon sufficient notice of by the city, shall execute all documents required to accomplish voluntary annexation.
(4) That if following such notice, the owner fails to execute the documents to accomplish voluntary annexation, then the city shall terminate the water and or sewer service to the property.
(5) The owner shall not oppose or support opposition to an annexation initiated by the city that includes any or all of the property to which water and or sewer service was provided by the city.
(Ord. passed 9-19-06)
After approval of the plans for the extension of waterlines and sewer lines by the City Manager, permission for extension may be granted by the City Manager, provided that the person receiving permission shall agree in writing that:
(A) He or she shall obtain and grant to the city, at no cost to the city, all necessary easements or rights of way of such widths as the city may require;
(B) He or she shall bear all the expense of constructing the water or sewer mains and of connecting them with the water or sewerage system of the city, and such mains shall be of such size as may be required and shall be laid in accordance with specifications approved by the city. Such person shall provide the city with lien waivers as evidence that such waterlines or sewer lines or both are free and clear of any claims for labor and materials used in the construction of such lines;
(C) The work shall be done under the supervision and control of the city;
(D) The city shall be saved harmless from all loss, cost, damage, liability or expense by reason of any injury to any person or property as a result of the construction of such mains. Such person shall provide the city with evidence of liability insurance insuring the city against claims for personal injury or death with limits of not less than $100,000 for death or injury to any one person and $300,000 for such damages as a result of any one occurrence or casualty, and insuring the city against claims for property damage for each occurrence or casualty with limits of not less than $25,000. Evidence of such insurance shall be provided to the city prior to commencement of construction; and
(E) The mains, when complete, shall become the absolute property of the city and subject to its control.
(1989 Code, § 16-212) Penalty, see § 15-215
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