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Order <br />2009-0009-DWQ amended by 2010-0014-DWQ & 2012-0006-DWQ <br /> 25 <br /> <br />K. Anticipated Noncompliance <br /> <br />The discharger shall give advance notice to the Regional Water Board and <br />local storm water management agency of any planned changes in the <br />construction activity, which may result in noncompliance with General <br />Permit requirements. <br /> <br />L. Bypass <br /> <br />Bypass8 is prohibited. The Regional Water Board may take enforcement <br />action against the discharger for bypass unless: <br /> <br />1. Bypass was unavoidable to prevent loss of life, personal injury or <br />severe property damage;9 <br /> <br />2. There were no feasible alternatives to bypass, such as the use of <br />auxiliary treatment facilities, retention of untreated waste, or <br />maintenance during normal periods of equipment downtime. This <br />condition is not satisfied if adequate back-up equipment should have <br />been installed in the exercise of reasonable engineering judgment to <br />prevent a bypass that could occur during normal periods of equipment <br />downtime or preventative maintenance; <br /> <br />3. The discharger submitted a notice at least ten days in advance of the <br />need for a bypass to the Regional Water Board; or <br /> <br />4. The discharger may allow a bypass to occur that does not cause <br />effluent limitations to be exceeded, but only if it is for essential <br />maintenance to assure efficient operation. In such a case, the above <br />bypass conditions are not applicable. The discharger shall submit <br />notice of an unanticipated bypass as required. <br /> <br />M. Upset <br /> <br />1. A discharger that wishes to establish the affirmative defense of an <br />upset10 in an action brought for noncompliance shall demonstrate, <br /> <br />8 The intentional diversion of waste streams from any portion of a treatment facility 9 Severe property damage means substantial physical damage to property, damage to the treatment <br />facilities that causes them to become inoperable, or substantial and permanent loss of natural resources that <br />can reasonably be expected to occur in the absence of a bypass. Severe property damage does not mean <br />economic loss caused by delays in production. <br /> 10 An exceptional incident in which there is unintentional and temporary noncompliance the technology <br />based numeric effluent limitations because of factors beyond the reasonable control of the discharger. An <br />upset does not include noncompliance to the extent caused by operational error, improperly designed <br />treatment facilities, inadequate treatment facilities, lack of preventative maintenance, or careless or improper <br />operation.