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(1) Upset.

(a) For the purposes of this section,

(i) “Upset” means an exceptional incident in which a discharger unintentionally and temporarily is in a state of noncompliance with the standards set forth herein due to factors beyond the reasonable control of the Permittee.

(ii) An upset does not exclude noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance, or careless or improper operation thereof.

(b) An upset shall constitute an affirmative defense to punitive actions in response to noncompliance with categorical pretreatment standards (PMC 13.90.060), but not local limits (PMC 13.90.080, 13.90.090, and 13.90.100) when the requirements of subsection (1)(c)(iii) of this subsection are met.

(c) A user who wishes to establish the affirmative defense of upset shall demonstrate through properly signed, contemporaneous operating logs, or other relevant evidence that:

(i) An upset occurred and the user can identify the cause(s) of the upset;

(ii) The facility was at the time being operated in a manner according with AKART (WAC 173-216-050(3) and PMC 13.90.070(4)) and was in compliance with applicable operation and maintenance procedures;

(iii) Where the upset involved reduction, loss, or failure of its treatment facility (e.g., a power failure), the user controlled production of all discharges to the extent necessary to maintain compliance with categorical pretreatment standards until the facility was restored or an alternative method of treatment was provided; and

(iv) The user submitted the following information to the Public Works Director within 24 hours of becoming aware of the upset. When initially provided orally, the user must have provided a written report within five days:

(A) A description of the indirect discharge and cause of noncompliance;

(B) The period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and

(C) Steps being taken and/or planned to reduce, eliminate, and prevent recurrence of the noncompliance.

(d) In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.

(e) 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.

(2) Prohibited Discharge Standards. A user will have an affirmative defense to an enforcement action brought against it for noncompliance with the prohibitions in PMC 13.90.050(1), and 13.90.050(2)(d) through (2)(h) in certain cases. The user must be able to prove that it did not know, or have reason to know, that its discharge, alone or in conjunction with discharges from other sources, 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; or

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

(3) Bypass Provisions.

(a) For the purposes of this section:

(i) “Bypass” means the intentional diversion of wastestreams from any portion of the pretreatment or treatment process.

(ii) “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) A user may allow a bypass to occur if it does not cause pretreatment standards or requirements to be violated and is for essential maintenance to provide efficient operation.

(c) Any other bypass must meet the following requirements:

(i) Users knowing in advance of the need for a bypass must submit prior notice to the Public Works Director, at least 10 days before the bypass wherever possible; and

(ii) Users must inform the Public Works Director of any unanticipated bypass that exceeds applicable pretreatment standards within 24 hours of becoming aware of the bypass. Users must provide a written follow-up report within five days. The Public Works Director may waive the written report if the oral report was timely and complete. Unless waived, the written report must contain:

(A) A description of the bypass (volume, pollutants, etc.);

(B) What caused the bypass;

(C) When, specifically, the bypass started and ended;

(D) When the bypass is expected to stop (if ongoing); and

(E) What steps the user has taken or plans to take to reduce, eliminate, and prevent the bypass from reoccurring.

(d) Bypass Prohibited.

(i) Bypass is prohibited, and the Public Works Director may take an enforcement action against a user for a bypass, unless:

(A) 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 user submitted notices as required under subsection (3)(c) of this section.

(ii) The Public Works Director may approve an anticipated bypass, after considering its adverse effects, if the Public Works Director determines that it will meet the three conditions listed in subsection (3)(d) of this section. [Ord. 4169 § 1, 2014; Code 1970 § 13.62.130.]