Authority: IC 13-14-8; IC 13-15-1-2; IC 13-15-2-1; IC 13-18-3; IC 13-18- 4

Affected: IC 13-18

Sec. 2. (a) A person regulated by an applicable general permit and this article shall, at all times:

1. (1) maintain in good working order; and
2. (2) efficiently operate;

facilities and systems (and related appurtenances) for collection and treatment that are installed or used by the person and that are necessary for achieving compliance with the terms and conditions of the applicable general permit and this article.

(b) The following definitions, with regard to bypass of treatment facilities and upsets, apply throughout the applicable general permit and this article:

1. (1) "Bypass" means the intentional diversion of a wastestream from a portion of a treatment facility normally utilized for treatment of the wastestream.

2. (2) "Severe property damage":

   1. (A) means:

      1. (i) substantial physical damage to property;
      2. (ii) damage to the treatment facilities that would cause them to become inoperable; or
      3. (iii) substantial and permanent loss of natural resources;
   2. that can reasonably be expected to occur in the absence of a bypass; and
   3. (B) does not mean economic loss caused by delays in production.

3. (3) "Upset", as used in this rule:

   1. (A) means an exceptional incident in which there is unintentional and temporary noncompliance with an effluent limitation in the applicable general permit because of factors beyond the reasonable control of the responsible person; and

   2. (B) does not include noncompliance to the extent caused by one (1) or more of the following:

      1. (i) Operational error.
      2. (ii) Improperly designed treatment facilities.
      3. (iii) Inadequate treatment facilities.
      4. (iv) Lack of preventive maintenance.
      5. (v) Careless or improper operation.

(c) A bypass is prohibited except as allowed under this subsection. The permittee may allow a bypass that does not exceed any effluent limitations contained in the general permit to occur but only if it also is for essential maintenance to ensure efficient operation. These bypasses are not subject to the requirements of subsection (d)(1) through (d)(3).

(d) The commissioner may take enforcement action against a permittee for a prohibited bypass unless the following conditions are met:

1. (1) Bypass is unavoidable to prevent loss of life, personal injury, or severe property damage.

2. (2) There are no feasible alternatives to bypass, such as:

   1. (A) the use of auxiliary treatment facilities;
   2. (B) retention of untreated wastes; or
   3. (C) maintenance during a normal period of equipment downtime.
3. This condition is not satisfied if adequate backup equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass from occurring during normal periods of equipment downtime or preventive maintenance.

4. (3) The permittee submits notice of a bypass according to the following:

   1. (A) An unanticipated bypass must be reported to the commissioner within twenty-four (24) hours of becoming aware of the bypass. If this information is provided orally, a written submission also must be provided within five (5) days.
   2. (B) If the permittee knows in advance of the need for an anticipated bypass, this prior notification must be submitted for approval to the commissioner if possible, at least ten (10) days before the date of the bypass.

An anticipated bypass that meets the criteria under this subsection may be allowed under conditions determined to be necessary by the commissioner to minimize any adverse effects.

(e) An upset constitutes an affirmative defense to an action brought for noncompliance with effluent limitations if the requirements under subsection (b) are met.

(f) A permittee regulated under an applicable general permit or this article who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs or other relevant evidence, the following:

1. (1) An upset occurred and the permittee can identify the cause or causes of the upset.
2. (2) The permitted facility was, at the time, being properly operated.
3. (3) The permittee complied with any remedial measures required under section 1(c) of this rule.
4. (4) The permittee gave the commissioner the notice required under section 3(c)(1)(D) of this rule.

In an enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.

(g) Solids, sludges, filter backwash, or other pollutants removed from or resulting from treatment or control of waters must be disposed of in:

1. (1) a manner that prevents a pollutant from the material from entering navigable waters; and
2. (2) compliance with all Indiana statutes and rules relative to the disposal of liquid or solid waste, or both.

(Water Pollution Control Division; 327 IAC 15-4-2; filed Aug 31, 1992, 5:00 p.m.: 16 IR 21; filed Nov 18, 2021, 11:08 a.m.: 20211215-IR-327180238FRA; readopted filed Oct 18, 2024, 1:57 p.m.: 20241113-IR-327230810RFA)