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PART II <br />Page 16 of 22 <br />Permit No.: CO-0001244 <br />iv) The level established by the Division in accordance with 40 C.F.R. § 122.44(f). <br />b. That any activity has occurred or will occur which would result in any discharge, on a non-routine or infrequent basis, of <br />a toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following "notification <br />levels": <br />i) Five hundred micrograms per liter (500 µg/1); <br />ii) One milligram per liter (1 mg/1) for antimony; and <br />iii) Ten (10) times the maximum concentration value reported for that pollutant in the permit application. <br />iv) The level established by the Division in accordance with 40 C.F.R. § 122.44(f). <br />6. Bypass Notification <br />If the permittee knows in advance of the need for a bypass, a notice shall be submitted, at least ten days before the date of the <br />bypass, to the Division. The bypass shall be subject to Division approval and limitations imposed by the Division. Violations <br />of requirements imposed by the Division will constitute a violation of this permit. <br />7. Upsets <br />a. Effect of an Upset <br />An upset constitutes an affirmative defense to an action brought for noncompliance with permit effluent limitations if the <br />requirements of paragraph (b) of this section are met. No determination made during administrative review of claims that <br />noncompliance was caused by upset, and before an action for noncompliance, is final administrative action subject to <br />judicial review. <br />b. 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 or <br />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 for a <br />violation of effluent limitations based upon water quality standards shall also demonstrate through monitoring, modeling <br />or other methods that the relevant standards were achieved in the receiving water. <br />c. Burden of Proof <br />In any enforcement proceeding the permittee seeking to establish the occurrence of an upset has the burden of proof. <br />8. Discharge Point <br />Any discharge to the waters of the State from a point source other than specifically authorized by this permit is prohibited.