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Permit, Part II <br />Page 31 of 47 <br />Permit No. CO0000213 <br />d. The permittee may allow a bypass to occur which does not cause effluent limitations to be exceeded, but only if it also <br />is for essential maintenance or to assure optimal operation. These bypasses are not subject to the provisions of <br />paragraph (a) above. <br />e. The Division may approve an anticipated bypass, after considering adverse effects, if the Division determines that the <br />bypass will meet the conditions specified in paragraph (a) above. <br />8. Upsets <br />a. "Upset" means an exceptional incident in which there is unintentional and temporary noncompliance with permit <br />effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include <br />noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate <br />treatment facilities, lack of preventative maintenance, or careless or improper operation. <br />b. Effect of an Upset <br />An upset constitutes an affirmative defense to an action brought for noncompliance with permit effluent limitations if <br />the requirements of paragraph (b) of this section are met. No determination made during administrative review of <br />claims that noncompliance was caused by upset, and before an action for noncompliance, is final administrative action <br />subject to judicial review. <br />c. Conditions Necessary for a Demonstration of Upset <br />A permittee who wishes to establish the affirmative defense of upset shall demonstrate through properly signed <br />contemporaneous operating logs, or other relevant evidence that: <br />i) An upset occurred and that the permittee can identify the specific cause(s) of the upset; and <br />ii) The permitted facility was at the time being properly operated and maintained; and <br />iii) The permittee submitted proper notice of the upset as required in Part II.A.4. of this permit (24-hour notice); and <br />iv) The permittee complied with any remedial measure necessary to minimize or prevent any discharge or sludge use <br />or disposal in violation of this permit which has a reason able likelihood of adversely affecting human health or the <br />environment. <br />In addition to the demonstration required above, a permittee who wishes to establish the affirmative defense of upset <br />for a violation of effluent limitations based upon water quality standards shall also demonstrate through monitoring, <br />modeling or other methods that the relevant standards were achieved in the receiving water. <br />d. Burden of Proof <br />In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof. <br />9. Submission of Incorrect or Incomplete Information <br />Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted <br />incorrect information in a permit application or in any report to the Division, the permittee shall promptly submit such facts <br />or information. <br />B. RESPONSIBILITIES <br />1. Reduction, Loss. or Failure of Treatment Facility <br />The permittee has the duty to halt or reduce any activity if necessary to maintain compliance with the effluent limitations of <br />the permit. Upon reduction, loss, or failure of the treatment facility, the permittee shall, to the extent necessary to <br />maintain compliance with its permit, control production, control sources of wastewater, or all discharges, until the facility is <br />