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MID-CONTINENT RESOURCES, INC. V LOOBY, 91 CV 177 <br /> OCTOBER 22, 1992 <br /> PAGE 5 <br /> 26 , 1989 to February 23 , 1989 . <br /> 14 . The samples taken by the regulators formed a major part of the <br /> evidence showing MCR' s violation of its permits . MLRD took samples <br /> on January 26 , 1989 and February 7 , 1989 , and WQCD took samples on <br /> February 2 , 1989 and on February 23 , 1989 . In concluding and <br /> charging that violations occurred, each regulatory agency relied on <br /> samples taken by the other. <br /> 15 . The record before the WQCD hearing officer contains <br /> substantial , competent justifying the Hearing Officer' s findings of <br /> violations . <br /> 16 . MCR ' s permit establishes "upset conditions" as an affirmative <br /> defense to an NOV . An upset condition is an exceptional incident <br /> in which there is an unintentional and temporary noncompliance with <br /> permit effluent limitations because of factors beyond the control <br /> of MCR, which could arguably include an unexpected severe snowstorm <br /> and snowmelt , or an avalanche . According to the WQCD' s regimen, <br /> for an upset condition to be usable as a defense to the CDPS <br /> permit , MCR must notify WQCD within 24 hours of the time MCR became <br /> aware of the conditions giving rise to the upset . MCR failed to <br /> give the 24 hour notice, and therefore could not avail itself of <br /> the upset condition as an affirmative defense. <br /> 17 . As is more fully explained below, the proceedings before MLRD <br /> and WQCD involved the same parties (the State of Colorado) , an <br /> identity of subject matter , identity of administrative claims for <br /> relief , and a final judgment of MLRD. Therefore, the decision- of <br />