§ 82-248. Affirmative defenses to discharge violations.

(a)

Prohibited discharge standards. A user shall have an affirmative defense to an enforcement action brought against it for noncompliance with the general prohibitions in section 82-237(a)(1) of this article or the specific prohibitions in sections 82-237(a)(2)c. through 82-237(a)(2)g. and 82-237(a)(2)i. through 82-237(a)(2)q. of this article 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 county 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)

Bypass.

(1)

For the purposes of this section:

a.

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

b.

"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.

(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 paragraphs (3) and (4) of this section.

(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 calendar 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 calendar 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 paragraph (b)(3) of this section.

b.

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 paragraph (4)a. of this section.

(Res. No. 06-1167, 11-15-06)