(A) In an action brought in federal court only: upset provision.
(1) For the purposes of this section, UPSET means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. An UPSET does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.
(2) An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (3), below, are met.
(3) 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 Pretreatment Coordinator 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.
(4) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
(5) 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.
(6) The user 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.
(B) In an action brought in municipal or state court only: act of God provision.
(1) An event that would otherwise be a violation that is caused solely by an act of God, war, strike, riot, or other catastrophe is not a violation.
(2) In any enforcement proceeding, the user seeking to establish the occurrence of an act of God, war, strike, riot, or other catastrophe shall have the burden of proof.
(3) In the event that divisions (B)(1) and (2) above have been demonstrated, the user shall control production of all discharges to the extent necessary to maintain compliance with pretreatment standards upon reduction, loss, or failure of its treatment facility until the facility is restored or an alternative method of treatment is provided.
(C) Bypass.
(1) For the purposes of this section:
(a) BYPASS. The intentional diversion of wastestreams from any portion of a 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 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 division (C)(3) and (4) of this section.
(3) (a) If a user knows in advance of the need for a bypass, it shall submit prior notice to the Pretreatment Coordinator, at least ten days before the date of the bypass, if possible.
(b) A user shall submit oral notice to the Pretreatment Coordinator 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 the 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 Pretreatment Coordinator 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 Pretreatment Coordinator may take an enforcement action against a 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 user submitted notices as required under division (C)(3) of this section.
(b) The Pretreatment Coordinator may approve an anticipated bypass, after considering its adverse effects, if the Pretreatment Coordinator determines that it will meet the three conditions listed in division (C)(4)(a)1. of this section.
(Ord. 1424, passed 4-28-03; Am. Ord. OR-2047-17, passed 4-24-17)