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B. Take appropriate action to stop or correct the condition of non-compliance. <br />G21. UPSETS <br />Permittees shall meet the conditions of 40 CFR 122.41(n) regarding "Upsets." The <br />conditions are as follows: <br />A. Definition. "Upset" means an exceptional incident in which there is unintentional and <br />temporary noncompliance with technology-based permit effluent limitations because <br />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 <br />treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or <br />careless or improper operation. <br />B. Effect of an upset. An upset constitutes an affirmative defense to an action brought <br />for noncompliance with such technology-based permit effluent limitations if the <br />requirements of paragraph (C) of this condition are met. Any determination made <br />during administrative review of claims that noncompliance was caused by upset, and <br />before an action for noncompliance, will not constitute final administrative action <br />subject to judicial review. <br />C. Conditions necessary for demonstration of upset. A Permittee who wishes to establish <br />the affirmative defense of upset shall demonstrate, through properly signed <br />contemporaneous operating logs, or other relevant evidence that: <br />1. An upset occurred and that the Permittee can identify the cause(s) of the upset; <br />2. The permitted facility was at the time being properly operated; and <br />3. The Permittee submitted notice of the upset as required in 40 CFR <br />122.41(l)(6)(ii)(B) (24-hour notice of noncompliance). <br />4. The Permittee complied with any remedial measures required under 40 CFR <br />122.41(d) (Duty to Mitigate). <br />D. Burden of proof. In any enforcement proceeding, the Permittee seeking to establish <br />the occurrence of an upset has the burden of proof <br />Eastern Washington Phase II Municipal Stormwater Permit August 1, 2014 <br />Page 48 <br />