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<br />transmission, storage, analysis and reporting of those samples <br />and, therefore, denies the accuracy, propriety and validity of <br />such listed sample results. <br />8, Snowmass admits that the discharge concentrations <br />listed in paragraphs 1 and 2 of the NOV under the heading <br />"Notice of Violation' exceed the discharge concentrations <br />generally allowed under the Permit. However, Snowmass is <br />without sufficient information or knowledge at tnis time to <br />attest to the accuracy, propriety or validity of the <br />collection, transmission, storage, analysis and reporting of <br />the samples upon which such listed concentrations are based <br />and, therefore, denies that the actual discharge concentrations <br />for the referenced time periods in fact exceeded the maximum <br />concentrations or minimum pH level allowed under the Permit. <br />In addition, for the reasons stated below, even if such <br />discharges did in fact exceed the maximum discharge <br />concentrations or minimum pH level generally allowed under the <br />Permit, Snowmass denies that such discharges would constitute <br />violations of the Permit. <br />AFFIRMATIVE DEFENSES <br />1. To the extent any of the discharges described in <br />the NOV may in fact have exceeded any maximum discharge <br />concentrations or minimum pH level listed in the Permit, such <br />discharge or discharges were allowable under the Permit and <br />applicable regulations as an excusable upset or upsets. The <br />daily concentrations and pH values listed in paragraphs 1 and 2 <br />of the NOV under the heading "Notice of Violations" were due to <br />upsets caused by exceptional circumstances in which any <br />noncompliance with the effluent limitations of the Permit was <br />unintentional, temporary, and due to factors beyond Snowmass' <br />reasonable control. Such upsets are excusable under the Permit <br />and applicable regulations. <br />2. The Colorado Mined Land Reclamation Division <br />issued its Notice of Violation on June 17, 1986 for the same <br />exceedance of CDPS permit limitations asserted by the WQCD <br />herein. A Notice of Proposed Amount of Civil Penalty was <br />issued to Snowmass on July 15, 1986 and an assessment <br />conference was held on August 26, 1986. Therefore, enforcement <br />action for the alleged permit violation has already been taken <br />by the State of Colorado. Subsequent pursuit of civil <br />penalties or other enforcement action by the WQCD violates the <br />due process rights of the permittee, exceeds the jurisdiction <br />of the WQCD, and further, is contrary to the Memorandum of <br />Understanding dated January 21, 1985 between the WQCD and MLRD, <br />a copy of which is attached hereto as Attachment A. <br />- 2 - <br />