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13. The Company admits the allegations contained <br />in paragraph 13. <br />14. The Company denies the allegations contained <br />in paragraph 14. <br />15. The Company admits the allegations contained <br />in paragraph 15, and further alleges that the permit for the <br />mine contains a specific effluent limitation for Outfall 002 <br />on the discharge of Total Suspended Solids (see page 4 of 20, <br />Permit No. CO-0033367), and that the permit does not specifically <br />prohibit the use of flocculants in order to meet that <br />limitation. <br />16. With regard to the allegations contained under <br />the heading "Notice of Violation" in the NOV, the Company <br />denies that the allegations set forth under the heading <br />"Findings of Fact" in the NOV establish that the Company is <br />or has been in violation of (a) the Colorado Basic Standards <br />and Methodologies, 3.1.11, 5 C.C.R. 1002-8; (b) Section 25-8- <br />501, C.R.S.; or (c) Part II A.1. of Permit No. CO-0033367. <br />AFFIRMATIVE DEFENSES <br />1. The flocculant NALCO 8852 is not a "pollutant" <br />as defined by §25-8-103(15), C.R.S. and 6.3.0(32), 5 C.C.R. <br />1002-2. <br />2. Section 3.1.11, 5 C.C.R. 1002-B is not a control <br />regulation, and therefore cannot be enforced through a notice <br />of violation under §25-8-602. <br />3. Any discharge of the flocculant NALCO 8852 was <br />unintentional and temporary, and was occasioned in part by <br />factors beyond the reasonable control of the Company. The <br />permit for the mine contains a specific effluent limitation <br />for Outfall 002 on the discharge of Total Suspended Solids <br />(see page 4 of 20, Permit No. CO-0033367, and the permit does <br />not specifically prohibit the use of flocculants in order to <br />meet that limitation. NALCO 8852 and other flocculants have <br />traditionally been used by the Company and its predecessor as <br />necessary to treat mine water before discharge at Outfall 002 <br />since early 1980, at the time original Pond 002 was constructed, <br />and a sudden and unexpected ten-fold increase in the amount <br />of mine water which the mine water handling s}•stem was required <br />to control and discharge made the use of flocculant all the <br />more necessary to control Total Suspended Solids within permit <br />limits. The Department of Health has been aware of the use <br />of flocculants in the Pond 002 system for a number of years, <br />and has never objected to their use. <br />-3- <br />