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Newport News MS4 stormwater discharge permit VA0088641 — 2024–2029

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Permit No. VA0088641 Page 41 of 42 b) Unanticipated Bypass. The permittee shall submit notice of an unanticipated bypass as required in Part III.I. 3. Prohibition of bypass. a) Bypass is prohibited, and the Department or its designee may take enforcement action against a permittee for bypass, unless: 1) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; 2) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass that occurred during normal periods of equipment downtime or preventive maintenance; and 3) The permittee submitted notices as required under Part III.U.2. b) The Department or its designee may approve an anticipated bypass, after considering its adverse effects, if the Department determines that it will meet the three conditions listed above in Part III.U.3 a. V. UPSET 1. An upset, as defined in 9VAC25-870-10, constitutes an affirmative defense to an action brought for noncompliance with technology-based permit effluent limitations if the requirements of Part III.V.3 are met. A determination made during administrative review of claims that noncompliance was caused by upset, and before an action for noncompliance, is not a final administrative action subject to judicial review. 2. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventative maintenance, or careless or improper operation. 3. A permittee who wishes to establish the affirmative defense of upset shall demonstrate, through properly signed, contemporaneous operating logs, or other relevant evidence that: a) An upset occurred and that the permittee can identify the cause(s) of the upset; b) The permitted facility was at the time being properly operated; c) The permittee submitted notice of the upset as required in Part III.I; and d) The permittee complied with any remedial measures required under Part III.S. 4. In any enforcement preceding the permittee seeking to establish the occurrence of an upset has the burden of proof. W. INSPECTION AND ENTRY The permittee shall allow the Department, EPA, or an authorized representative (including an authorized contractor) upon presentation of credentials and other documents as may be required by law, to: 1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this state permit;
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