§ 51.112  BYPASS.
   (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 provisions of divisions (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/Superintendent, at least ten days before the date of the bypass, if possible.
      (2)   A user shall submit oral notice to the POTW Director/ Superintendent 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/Superintendent 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) of this section.
      (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) of this section.
   Note: The affirmative defense for bypass from the federal regulations has not been incorporated into state pretreatment regulations either verbatim or by reference.  It will be incorporated when the state pretreatment regulations are modified in 1993 to incorporate changes to the federal regulations that have occurred since 1987 when the state regulations were last modified.  The state regulations governing NPDES permits do, however, incorporate the bypass provision. DWQ is of the opinion that local governments may incorporate the bypass provision into their ordinances since such authority is provided by the federal regulations and since state regulations do not specifically prohibit the bypass provision, even though state pretreatment regulations do not as yet specify the bypass provision.  Incorporation of this provision within the ordinance prior to change in the state pretreatment regulations will prevent the necessity of changing the ordinance at a later date when the state pretreatment regulations are modified.
(Ord. passed 12-4-06; Am. Ord. passed 5-4-09; Am. Ord. passed 2-4-13)