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For the purpose of this section “upset” means an exceptional incident in which there is unintentional and temporary noncompliance with applicable pretreatment standards because of factors beyond the reasonable control of the user. An upset does not include noncompliance to the extent caused by operation error, improperly designed facilities, inadequate facilities, lack of preventative maintenance, or careless or improper operation.

An upset shall constitute an affirmative defense to an action brought for noncompliance with applicable pretreatment standards if the requirements of the next paragraph are met.

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;

C. The user has submitted the following information to the City and the wastewater treatment plant operator within twenty-four (24) hours of becoming aware of the upset (if this information is provided orally, a written submission must be provided to the City within five (5) days):

1. A description and location 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;

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. A user may appeal any enforcement action due to an upset as provided under this ordinance;

6. Users shall control production of all discharges to the extent necessary to maintain compliance with applicable 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.

A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the prohibitions in SMC 15.08.050 if it can prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with other discharges from the same user, would cause pass through or interference and that either:

A. A local limit exists for each pollutant discharged and the user was in compliance with each limit directly prior to, and during, the pass through or interference;

B. No local limit exists, but the discharge did not change substantially in nature of constituents from the user’s prior discharge when the City was regularly in compliance with its NPDES permit, and, in the case of interference, was in compliance with applicable sludge use or disposal requirements.

For the purpose of this section “bypass” means the intentional diversion of waste streams from any portion of a user’s treatment facility and “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.

A user may allow any bypass to occur which does not cause applicable 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 A and B that follow:

A. If a user knows in advance of the need for a bypass, it shall submit prior written notice to the City, at least ten (10) days before the date of the bypass, if possible.

A user shall submit oral notice to the City of an unanticipated bypass that exceeds applicable pretreatment standards or requirements within twenty-four (24) hours from the time it becomes aware of the bypass. A written submission shall also be provided to the City within five (5) days of the time the user becomes aware of the bypass. The written submission shall contain the following:

1. A description of the bypass and its cause;

2. The duration of the bypass including exact dates and times;

3. If the bypass has not been corrected, the anticipated time it is expected to continue;

4. Steps taken or planned to reduce, eliminate and prevent reoccurrence of the bypass.

The City may waive the written report on a case-by-case basis if the oral report has been received within twenty-four (24) hours.

B. Bypass is prohibited and the City may take an enforcement action against a user for 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 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 preventative maintenance;

3. The user submitted notices as required under subsection A above. (Ord. 2351, 2018)

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