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STANDARD PROVISION mND REPORTING REQUIREMENTS -7- Waste Discharge to Land (2) There were no feasible alternatives to by-pass, such as the use of auxiliary treatment facilities or retention of untreated waste. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a by-pass that would otherwise occur during normal periods of equipment downtime or preventive maintenance; or b. (1) by-pass is required for essential maintenance to assure efficient operation; and (2) neither effluent nor receiving water limitations are exceeded; and (3) the discharger notifies the Board ten days in advance. The permittee shall submit notice of an unanticipated by-pass as required in paragraph B.1. above. 3. A discharger that wishes to establish the affirmative defense of an upset (see definition in E.6 below) in an action brought for noncompliance shall demonstrate, through properly signed, contemporaneous operating logs, or other evidence, that: a. an upset occurred and the cause(s) can be identified; b. the permitted facility was being properly operated at the time of the upset; c. the discharger submitted notice of the upset as required in paragraph B.1. above; and d. the discharger complied with any remedial measures required by waste discharge requirements. In any enforcement proceeding, the discharger seeking to establish the occurrence of an upset has the burden of proof. 4. A discharger whose waste flow has been increasing, or is projected to increase, shall estimate when flows will reach hydraulic and treatment capacities of its treatment, collection, and disposal facilities. The projections shall be made in January, based on the last three years' average dry weather flows,peak wet weather flows and total annual flows, as appropriate. When any projection shows that capacity of any part of the facilities may be exceeded in four years, the discharger shall notify the Board by 31 January. 5. Effluent samples shall be taken downstream of the last addition of wastes to the treatment or discharge works where a representative sample may be obtained prior to disposal. Samples shall be collected at such a point and in such a manner to ensure a representative sample of the discharge.