2015-12-22_PERMIT FILE - C1984065

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Appendix 4.7-8 Part II Page 17 of 31 Permit No. CO0048972 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. d. The permittee may allow a bypass to occur which does not cause effluent limitations to be exceeded, but only if it also is for essential maintenance or to assure optimal operation. These bypasses are not subject to the provisions of paragraph (a) above. e. The Division may approve an anticipated bypass, after considering adverse effects, if the Division determines that the bypass will meet the conditions specified in paragraph (a) above. S. Upsets a. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance, or careless or improper operation. b. Effect of an Upset An upset constitutes an affirmative defense to an action brought for noncompliance with permit effluent Limitations if the requirements of paragraph (b) of this section are met. No determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to judicial review. c. Conditions Necessary for a Demonstration of Upset A permittee who wishes to establish the affirmative defense of upset shall demonstrate through properly signed contemporaneous operating logs, or other relevant evidence that: i) An upset occurred and that the permittee can identify the specific cause(s) of the upset; and ii) The permitted facility was at the time being properly operated and maintained; and iii) The permittee submitted proper notice of the upset as required in the NOTIFICATION REQUIREMENTS section of this permit (24-hour notice); and iv) The permittee complied with any remedial measure necessary to minimize or prevent any discharge or sludge use or disposal in violation of this permit which has a reason able likelihood of adversely affecting human health or the environment. In addition to the demonstration required above, a permittee who wishes to establish the affirmative defense of upset for a violation of effluent limitations based upon water quality standards shall also demonstrate through monitoring, modeling or other methods that the relevant standards were achieved in the receiving water. d. Burden of Proof In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof. 9. Submission of Incorrect or Incomplete Information Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Division, the permittee shall promptly submit such facts or information.