Non-complying Discharges: Required Notifications and Actions

(1) Each Person with a discharge governed by 360 CMR 10.000 shall notify the Authority and the appropriate Municipality immediately by telephone of any accidental discharge of a pollutant regulated by 360 CMR 10.000 or by any permit or order issued thereunder, and of any Upset, Slug or Slug Discharge, or spill that may reasonably be expected to discharge to the Municipal or Authority Sewerage System. Such notification shall contain the information necessary to enable the Authority and Municipality to undertake countermeasures to minimize damage to the Authority and Municipal Sewerage Systems, Receiving Waters, and the public health, safety, welfare and the environment, including the following: (a) the location of the discharge; (b) the date and time of the discharge; (c) the characteristics of the discharge, including concentration and volume; and (d) any corrective actions taken. (2) Within 15 calendar days of the date of the event requiring notice under 360 CMR 10.013(1), the Person required to provide the notice shall submit a detailed written statement to the Authority and the Municipality describing the causes of the discharge and the measures being taken to prevent the discharge from recurring. For a Slug Discharge, such written statement shall be provided within five days of such Slug Discharge. The notification shall include the following: (a) A description of the discharge, and the type, concentration, and volume of waste; (b) A statement of the duration of noncompliance caused by the accidental discharge, Upset, spill, or Slug, including exact dates and, if the noncompliance continues, the time by which compliance is reasonably expected to occur; and (c) A description of all steps taken or to be taken to reduce, eliminate, and prevent recurrence of such an accidental discharge, Upset, Slug, or spill. (3) If sampling performed by a Person indicates a violation of 360 CMR 10.022, 10.023 or 10.024, or a limit or prohibition contained in the Person's permit, the person shall notify the Authority within 24 hours of becoming aware of the violation. The Person shall also repeat the sampling and analysis and submit the results of the repeat analysis to the Authority within 30 days of becoming aware of the violation, except the Person is not required by 360 CMR 10.013(3) to resample if: (a) The Authority performs sampling at the Person's facility at a frequency of at least once per month; or (b) The Authority performed sampling at the Person's facility between the time when the Person performed its initial sampling and the time when the Person received the results of that sampling. (4) A Person shall submit to the Authority oral notice of an unanticipated Bypass that violated 360 CMR 10.022, 10.023, or 10.024, or a limit or prohibition contained in the Person's permit, within 24 hours of becoming aware of the Bypass. The Person shall also make a written submission to the Authority within five days of the time the Person became 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 Authority may waive the written submission on a case by case basis if the oral report has been received within 24 hours. (5) The notifications required by 360 CMR 10.013 shall not relieve the Person of liability for costs, damages, or penalties, or prevent the Authority from taking enforcement action. (a) To raise the affirmative defense that a Violation was caused by an Upset, the requirements for reporting and proving an Upset, as found in 360 CMR 2.23: Affirmative Defenses, shall be met. In addition, in the case of an Upset, the Person shall control production or all discharges to the extent necessary to maintain compliance with 360 CMR 10.021 through 10.025, and with any limit or prohibition in the Person's permit, upon reduction, loss, or failure of its treatment system until the system 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 system is reduced, lost, or fails. (b) The Authority will not take enforcement action for a Bypass if: 1. The Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage. For purposes of 360 CMR 10.013(5), severe property damage means substantial physical damage to property, damage to treatment systems 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. 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 preventative maintenance; and 3. The Person provided the notices required by 360 CMR 10.013(4), and, if it knew in advance of the need for a Bypass it submitted prior notice to the Authority, if possible at least ten days before the date of the Bypass.