(A) Upset.
(1) For the purposes of this section, UPSET means an exceptional incident in which there is unintentional and temporary non-compliance with categorical pretreatment standards because of factors beyond the reasonable control of the industrial user. An UPSET does not include non-compliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance, or careless or improper operation.
(2) The industrial user must submit the following information to the District within 24 hours upon becoming aware of an operational upset (if this information is provided orally, a written submission must be provided within five working days):
(a) A description of the upset and specific cause of non-compliance;
(b) The period of non-compliance, including exact dates and times or, if not corrected, the anticipated time the non-compliance is expected to continue; and
(c) Steps being taken and/or planned to reduce, eliminate and prevent recurrence of the non-compliance.
(B) Bypass.
(1) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
BYPASS. The intentional diversion of wastestreams from any portion of a user’s treatment facility.
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 divisions (B)(3) and (B)(4) below.
(3) (a) If a user knows in advance of the need for a bypass, it shall submit prior notice to the Director, at least ten days before the date of the bypass, if possible.
(b) A user 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 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 Director 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 Director 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 (B)(3) above.
(b) The Director may approve anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed in division (B)(4)(a) above.
(5) A documented and verified upset or bypass may constitute an affirmative defense to an action brought for non-compliance with applicable pretreatment standards if the requirements of 40 C.F.R. § 403.16(c) are met.
(Prior Code, § 54.66)