(1) For the purposes of this section:
(a) Bypass means the intentional diversion of wastestreams from any portion of a user's treatment facility.
(b) Severe property damage means 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 absence of a bypass. Severe property damage does not mean economic loss caused by delays in production.
(2) 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 subsections (3) and (4) of this section.
(3) Bypass Notifications:
(a) If a user knows in advance of the need for a bypass, it shall submit prior notice to the manager, at least ten (10) days before the date of the bypass.
(b) A user shall submit oral notice to the manager of an unanticipated bypass that exceeds applicable pretreatment standards within twenty four (24) hours from the time it becomes aware of the bypass. A written submission shall also be provided within five (5) days of the time the user becomes aware of the bypass. The written submission shall contain: a) a description of the bypass; b) its cause; c) the duration of the bypass, including exact dates and times; d) if the bypass has not been corrected, the anticipated time it is expected to continue; and e) steps taken or planned to reduce, eliminate, and prevent reoccurrence of the bypass. The manager, in his or her sole discretion, may waive the written report on a case by case basis if the oral report has been received within twenty four (24) hours, and the facts merit the waiver.
(4) Bypass:
(a) Bypass is prohibited, and the manager may take an enforcement action against a user, unless:
(i) Bypass was unavoidable in order to prevent loss of life, personal injury, or severe property damage;
(ii) 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
(iii) The user submitted notices as required under subsection (3) of this section.
(b) The manager may approve an anticipated bypass, after considering its adverse effects, if the manager determines that it will meet the three (3) conditions listed in subsection (4)(a) of this section.
(c) Bypass shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards, if the requirements of this subsection (4) are met. (Ord. 2018-19, 2018)