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STANDARD PROVISIONS AND REPORTING REQUIREMENTS -7- <br /> Waste Discharge to Land <br /> E. Dischargers Exempt from Subchapter 15 (continued) <br /> effluent limits) is prohibited. The Board may take enforcement action <br /> against the discharger for by-pass unless: <br /> a. (1) By-pass was unavoidable to prevent loss of life, personal <br /> injury, or severe property damage. (Severe property damage <br /> means substantial physical damage to property, damage to the <br /> treatment facilities that causes them to become inoperable, or <br /> substantial and permanent loss of natural resources that can <br /> reasonably be expected to occur in the absence of a by-pass. <br /> Severe property damage does not mean economic loss caused by <br /> delays in production) ; and <br /> (2) There were no feasible alternatives to by-pass, such as the <br /> use of auxiliary treatment facilities or retention of untreated <br /> waste. This condition is not satisfied if adequate back-up <br /> equipment should have been installed in the exercise of <br /> reasonable engineering judgment to prevent a by-pass that would <br /> otherwise occur during normal periods of equipment downtime or <br /> preventive maintenance; or <br /> b. (1) by-pass is required for essential maintenance to assure effi- <br /> cient operation; and <br /> (2) neither effluent nor receiving water limitations are exceeded; <br /> and <br /> (3) the discharger notifies the Board ten days in advance. <br /> The permittee shall submit notice of an unanticipated by-pass as <br /> required in paragraph B.I. above. <br /> 3. A discharger that wishes to establish the affirmative defense of an <br /> upset (see definition in E.6 below) in an action brought for <br /> noncompliance shall demonstrate, through properly signed, <br /> contemporaneous operating logs, or other evidence, that: <br /> a. an upset occurred and the cause(s) can be identified; <br /> b. the permitted facility was being properly operated at the time of <br /> the upset; <br /> c. the discharger submitted notice of the upset as required in <br /> paragraph B.I. , above; and <br /> d. the discharger complied with any remedial measures required by waste <br /> discharge requirements. <br />