§ 90-135. Notification requirements and affirmative defenses to accidental discharge, upset and bypass.

(a)

Accidental discharge of prohibited discharge standards. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions or the specific prohibitions in subsection 90-126(b) if it can 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:

(1)

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

(2)

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 permit, and in the case of interference, was in compliance with applicable sludge use or disposal requirements.

(b)

Upset. If there occurs an unintentional and temporary noncompliance with pretreatment standards because of factors beyond the reasonable control of the industrial user (such as force majeure), and the industrial user wishes to establish an affirmative defense of an upset, the user must demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence, that:

(1)

An upset occurred and the industrial user can identify the cause of the upset;

(2)

The industrial user's facility was, at the time of the upset, being operated in a prudent and workmanlike manner and in compliance with applicable operation and maintenance procedures; and

(3)

The industrial user properly notified the city of the upset in accordance with the procedures set forth in subsection (d) of this section. In any enforcement proceeding, the industrial user seeking to establish the occurrence of an upset has the burden of proof. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation. The industrial user shall control production or 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.

(c)

Bypass.

(1)

An industrial user may allow bypass to occur which does not cause pretreatment standards or requirements to be violated, but only if it is for essential maintenance to ensure efficient operation.

(2)

If an industrial user knows in advance of the need for a bypass, it shall submit a notice to the city at least ten days before the date of the bypass. If an industrial user does not know of the need for a bypass ten days prior to the bypass then the industrial user shall notify the city as the control authority immediately upon knowledge of the need for the bypass.

(3)

Bypass that exceeds applicable pretreatment standards is prohibited, and the city shall take enforcement action against an industrial user for a bypass, unless:

a.

The bypass was unavoidable to prevent loss of life, personal injury, or sever property damage.

b.

There were no technically 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.

c.

The industrial user properly notifies the city of the bypass in accordance with the procedures set forth in subsection (d) of this section.

(d)

Notification of accidental discharge, upset or bypass.

(1)

Immediate notification via telephone. In the event of an accidental discharge, slug load, upset or bypass, (including a violation of the prohibited discharge standards in subsection 90-126(b)) the user shall take the necessary measures to stop, limit, or control the discharge. The discharger shall immediately notify the city within 24 hours about the incident by telephone, by contacting the 24-hour emergency dispatch at 561-822-2210. The notification shall include:

a.

Address of the discharge;

b.

Description of discharge and noncompliance;

c.

Concentration of pollutants in the discharge;

d.

Volume of discharge;

e.

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

f.

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

(2)

Written notification. Within five calendar days of the accidental discharge, upset or bypass, the discharger shall submit a written report to the city. The report shall include, but not be limited to, description of the bypass, type of discharge, concentrations, volume, cause of the event, duration of the event including exact dates and times, corrective measures taken, if the bypass has not been correct, the anticipated time it is expected to continue, and measures to be employed to reduce, eliminate and prevent future incidents. If further information is requested by the city, the discharger shall provide the information to the city within 48 hours of the request. Such notification shall not relieve the user of any expense, loss, damage, or other liability which may be incurred as a result of damage to the WWF, natural resources, or any other damage to person or property; nor shall notification relieve the user of any fines, civil penalties, or other liability which may be imposed by this article or other applicable law.

(3)

Notice to employees. A notice shall be permanently posted on the user's bulletin board or other prominent place advising employees whom to call in the event of an accidental discharge, upset or bypass. Employers shall ensure that all employees who could cause or suffer such accidental discharges, upset or bypasses to occur are advised of the emergency notification procedures. Failure to notify the city of potential problem discharges, upset or bypasses shall be deemed a separate violation of this article.

(Ord. No. 4414-12, § 1, 4-2-2012)