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4 <br />- Due to the low flow, Mr. Koehler noted that he was unable to avoid <br />stirring up a certain amount of sediment in the process of <br />collecting the volume of water necessary for the sample. <br />- The ~eak was not repaired until May 1, 1992, because of certain <br />difficulties in safely draining the pond. The original plan to <br />pump out the water for use underground did not prove workable. <br />- The operator obtained a water sample on April 23 from the sample <br />site below the pond outlet. At that time, the flow was <br />approximately 7 gpm, due to precipitation inflows which had raised <br />the water level in the pond to the dewatering level. The April 23, <br />TSS analysis was 34 mg/l, well within the NPDES Permit limit. <br />The Division representatives were in basic concurrence with Mr. Koehler's <br />description of the events. <br />Mr. Shuey indicated that the repairs had been completed and the pipe was not <br />leaking when he inspected the site on May 6, 1992. The decision to issue the <br />NOV was based on the April 16 sample which indicated an NPDES exceedance had <br />occurred. <br />On May 14, 1992, Mr. Dwain Watson of the Colorado Department of Health, Water <br />Quality Control Division (DOH) inspected the site. DOH recommended certain <br />modifications to the pond outfall, but chose not to pursue enforcement. This <br />decision was based on questions concerning the validity of the sample <br />technique and location, and based on the lack of evidence that any discharge <br />exceeding permit limits had entered state waters. This reasoning was conveyed <br />in phone conversations by Pat Nelson and Anne Ihlenfeldt of DOH, to David <br />Berry of the Division. <br />Based on these reasons, consideration of the documentation provided by the <br />operator indicating that the leak had not developed prior to March 31, <br />(3/31/92 Certified Pond Inspection), and consideration of the fact that <br />monitoring of an increased flow on April 23 showed the discharge to be in <br />compliance, I believe that the evidence does not support the violation alleged. <br />In my view, the leak was evidence of the need for maintenance, which the <br />operator completed before the problem worsened. There is no evidence that the <br />operator was negligent in inspecting or monitoring the pond, or that the <br />operator could reasonably have been expected to identify and repair the defect <br />in the standpipe before the small leak developed. <br />-~- <br />