§ 98-168. Affirmative defenses to bypass.

(a)

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning.

Bypass means the intentional diversion of wastestreams from any portion of an industrial user's treatment facility.

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.

(b)

Bypass not violating applicable pretreatment standards or requirements. An industrial 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 subsections (c) and (d) of this section.

(c)

Notice.

(1)

If an industrial user knows in advance of the need for a bypass, it shall submit prior notice to the director, if possible at least ten days before the date of the bypass. If ten days' notice is not possible, the industrial user shall submit notice as soon as possible.

(2)

An industrial user shall submit oral notice of an unanticipated bypass that exceeds applicable pretreatment standards to the director within 24 hours from the time the industrial user becomes aware of the bypass. A written submission shall also be provided within five days of the time the industrial user becomes aware of the need for 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; steps taken or planned to reduce, eliminate and prevent reoccurrence of the bypass. The director may at his discretion waive the written report on a case-by-case basis if the oral report has been received within 24 hours.

(d)

Prohibition of bypass.

(1)

Bypass is prohibited, and the director may take enforcement action against an industrial user for a bypass, unless:

a.

The 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 backup 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 industrial user submitted notices as required under this section.

(2)

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 subsection (d)(1) of this section and the industrial user complies with the notice requirements of subsection (c) of this section.

(e)

Burden of proof. In any enforcement proceeding, the industrial user seeking to establish the occurrence of a nonprohibited bypass shall have the burden of proving the occurrence to a preponderance of the evidence.

(Code 1967, § 34-65(b); Ord. No. 6191, § 15, 3-26-92; Ord. No. 8118, § 1, 10-23-97)