A permittee who wishes to establish the affirmative defense of an upset must demonstrate, through signed, contemporaneous operating logs or other relevant evidence that the following happened:

1. (1) An upset occurred and the permittee can identify the cause or causes of the upset;
2. (2) The permitted facility was at the time being properly operated;
3. (3) The permittee gave 24-hour notice of the upset; and

4. (4) The permittee took remedial measures to minimize or prevent a discharge in violation of the permit.

   In any enforcement proceeding, the permittee seeking to establish the occurrence of an upset has the burden of proof.

Source: 14 SDR 86, effective December 24, 1987; 19 SDR 122, effective February 21, 1993; transferred from § 74:03:19:09, July 1, 1996.

General Authority: SDCL 34A-2-30.

Law Implemented: SDCL 34A-2-39 to 34A-2-42 , 34A-2-44.