(A) Upset.
(1) An upset shall constitute an affirmative defense to an action brought for noncompliance with pretreatment standards if the requirements of division (A)(2), below, are met.
(2) An IU 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 IU can identify the cause(s) of the upset;
(b) The facility was, at the time, being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and
(c) The IU has submitted the following information to the director within 24-hours of becoming aware of this upset:
1. A description of the 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;
3. Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the noncompliance; and
4. If this information is provided orally, a written submission must be provided within five calendar days.
(3) In any enforcement proceeding, the IU seeking to establish the occurrence of an upset shall have the burden of proof.
(4) Industrial users will have the opportunity for a judicial determination on any claim of upset only in an enforcement action brought for noncompliance with pretreatment standards.
(5) Industrial users 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. 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) General/specific prohibitions. An IU shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in § 54.30(A) and the specific prohibitions in § 54.30(B)(1) - (7), (9), (10) and (12) - (18) if it can prove that it did not know or have reason to know that its discharge would cause pass through or interference and that either:
(1) A local limit exists for each pollutant discharged that caused the pass through or interference and the IU was in compliance with each limit directly prior to and during the pass through or interference, or
(2) No applicable local limit exists, but the discharge directly prior to and during the pass through or interference, did not change substantially in nature or constituents from the IU's prior discharge activity when the city was regularly in compliance with its NPDES permit and, in the case of interference, with applicable biosolids use or disposal requirements. This defense does not apply to the specific prohibitions in § 54.30(B)(l), (2), (8) and (11).
(C) Bypass.
(1) For the purposes of this section:
(a) "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 that 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) Permissible bypass. An IU may allow any bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it is also for essential maintenance to assure efficient operation. These bypasses are not subject to the provision of divisions (A)(3) and (4) of this section.
(3) Notice.
(a) If an IU knows in advance of the need for a bypass, it shall submit prior notice to the director, at least ten calendar days before the date of the bypass, if possible.
(b) An IU shall submit oral notice to the 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 calendar days of the time the IU 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 time and, if the bypass has not been corrected, the anticipated time it is expected to continue. The submission shall also contain steps taken or planned to reduce, eliminate and prevent reoccurrence of the bypass. The director may waive the written submission on a case-by-case basis if the oral report has been received within 24 hours.
(4) Prohibited bypass.
(a) Bypass is prohibited, and the director may take an enforcement action against an IU for a bypass, unless:
1. The 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 period of equipment downtime or preventative maintenance; and
3. The IU submitted notices as required under division (C)(3).
(b) 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)(4)(a).
(Ord. 679, passed 9-26-2017)