Affirmative defenses to discharge violations.
Houston Code of Ordinances § 47-199
in effectSec. 47-199. - Affirmative defenses to discharge violations.
(a) Act of God defense.
(1) The Act of God defense constitutes a statutory affirmative defense [Texas Water Code § 7.251] in an action brought in municipal or state court. If a person can establish that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot, or other catastrophe, the event is not a violation of the ordinance or permit.
(2) A user who wishes to establish the Act of God affirmative defense shall demonstrate, through relevant evidence that:
a. An event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance occurred, and the sole cause of the event was an act of God, war, strike, riot, or another catastrophe; and
b. The user has submitted the following information to the POTW and the city within 24 hours of becoming aware of the event that would otherwise be a violation of a pretreatment ordinance or a permit issued under the ordinance (if this information is provided orally, a written submission must be provided within five days):
1. A description of the event, and the nature and cause of the event;
2. The time period of the event, including exact dates and times or, if still continuing, the anticipated time the event is expected to continue; and
3. Steps being taken or planned to reduce, eliminate and prevent recurrence of the event.
(3) Burden of proof. In any enforcement proceeding, the user seeking to establish the Act of God affirmative defense shall have the burden of proving by a preponderance of the evidence that an event that would otherwise be a violation of a pretreatment ordinance, or a permit issued under the ordinance, was caused solely by an act of God, war, strike, riot or other catastrophe.
(b) Bypass.
(1) Definitions. For the purposes of this section:
Bypass means the intentional diversion of wastestreams from any portion of a user's treatment facility.
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 is also for essential maintenance to assure efficient operation. The user seeking to establish that the discharge does not violate pretreatment standards and requirements shall have the burden of proof. These bypasses are not subject to the provisions of item (4) of this subsection.
(3) Bypass notifications.
a. If a user knows in advance of the need for a bypass, it shall submit prior notice to the director, at least ten days before the date of the bypass, if possible.
b. A user shall submit verbal notice to the director of an unanticipated bypass within 24 hours from the time it becomes aware of the bypass. User shall submit a written notice within five 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 verbal report has been received within 24 hours.
(4) Bypass.
a. Bypass is prohibited, and the director may take an enforcement action against a user for a bypass, unless the user can demonstrate that
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 item (3) of this subsection.
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 item (4)a of this subsection.
(Ord. No. 2020-1024, § 2(Exh. A), 12-2-2020)
Source: City of Houston, Code of Ordinances and City Charter (Municode Library, library.municode.com)URL: https://library.municode.com/tx/houston/codes/code_of_ordinances?nodeId=COOR_CH47WASE_ARTVINWA_S47-199AFDEDIVIFetched: 10/26/2026