Proper operation and maintenance/maintenance and inspection of pretreatment or flow equalization facilities, bypass and upset.
Memphis Code of Ordinances § 13-24-46
in effectSec. 13-24-46. - Proper operation and maintenance/maintenance and inspection of pretreatment or flow equalization facilities, bypass and upset.
A. Proper operation and maintenance. The user shall, at all times, properly operate and maintain all pretreatment facilities and systems of treatment and control (and related appurtenances) which are installed or used by the industrial user to achieve and monitor compliance with pretreatment standards and pretreatment requirements. This includes adequate laboratory controls and appropriate quality assurance procedures, the operation of back-up or auxiliary facilities, or similar systems which are installed by the industrial user only when the operation is necessary to achieve compliance. Except as provided by 13-24-46(C), the intentional diversion of waste streams from any portion of the industrial user's treatment facility is prohibited. In no event shall the diversion of waste streams from any portion of the user's treatment facility cause interference or pass-through.
B. Pretreatment and/or flow equalization. Where pretreatment or flow equalization facilities are required for any water or wastewater, they shall be maintained continuously and satisfactorily and in effective operation by the owner at his expense and shall be subject to periodic inspection by the control authority. The owner or operator shall maintain and make available, as requested, operating records as prescribed by the control authority.
C. 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 or around required metering or sampling equipment.
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 pretreatment 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 subsections (3) and (4) of this section.
3. Bypass notifications.
a. If a user knows in advance of the need for a bypass, it shall submit prior notice to the control authority, at least ten days before the date of the bypass, if possible.
b. A user shall submit oral notice to the control authority 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 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 control authority may waive the written report on a case-by-case basis if the oral report has been received within 24 hours.
4. Bypass.
a. Bypass is prohibited, and the control authority may take an enforcement action against a user for a bypass, unless bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; 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; and the user submitted notices as required under subsection (3) of this section. 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.
b. The control authority may approve an anticipated bypass, after considering its adverse effects, if the control authority determines that it will meet the three conditions listed in [subsection] (4)(A) of this section.
c. In no event shall the diversion of flows cause the city to violate its NPDES permit(s). Notwithstanding any provision to the contrary, bypass shall not be a defense to causing interference or pass-Through.
D. Upset.
1. For the purposes of this section, upset means an exceptional incident in which there is unintentional and temporary noncompliance with categorical pretreatment standards because of factors beyond the reasonable control of the user. 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.
2. An upset shall constitute an affirmative defense to an action brought for noncompliance with categorical pretreatment standards if the requirements of subsection (3), below, are met. An upset is not an affirmative defense for violation of any other requirement (e.g., general and specific prohibitions, local limits).
3. A user who wishes to establish the affirmative defense of upset shall demonstrate through properly signed, contemporaneous operating logs or other relevant evidence that:
a. An upset occurred and the user can identify the cause(s) of the upset;
b. The facility was, at the time being operated, in a prudent and workman-like manner and in compliance with applicable operation and maintenance procedures; and
c. The user has submitted the following information to the control authority within 24 hours of becoming aware of the upset (and, if this information is provided orally, a written submission must be provided within five days) that includes: a description of the indirect discharge and cause of noncompliance; the period of noncompliance, including exact dates and times or, if not corrected, the anticipated time the noncompliance is expected to continue; and steps being taken and/or planned to reduce, and prevent recurrence of the noncompliance.
4. In any enforcement proceeding, the user seeking to establish the occurrence of an upset shall have the burden of proof.
5. Review of whether an event meets the upset criteria is available to a user only in the context of an enforcement action brought for noncompliance with categorical pretreatment standards.
E. Reduction in production required as necessary to achieve compliance. Users shall control production to the extent necessary to maintain compliance with discharge limitations 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.
(Ord. No. 5793, §§ 3, 5, 8-17-2021)
Source: City of Memphis, Code of Ordinances and Charter and Related Laws (Municode Library, library.municode.com)URL: https://library.municode.com/tn/memphis/codes/code_of_ordinances?nodeId=TIT13PUSE_CH13-24PR_ART3DIPUSASE_S13-24-46PROPMAMAINPRFLEQFABYUPFetched: 10/28/2026