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periods the only high temperature above freezing was 35° Fahrenheit <br /> on January 10, 1989 . For nine of the 14 days from January 6-19, <br /> 1989 low temperatures were below 0° Fahrenheit and the low average <br /> temperature was -1° Fahrenheit. <br /> 41.9. 1 The consequence of these extreme cold <br /> temperatures, was to cause the Outfall No. 016 ponds to freeze. <br /> The "anchor ice" freezing phenomena that occurred, from the bottom <br /> and sides as well as downward from the top, caused the ponds to <br /> short-circuit which, in turn, prevented the release of suspended <br /> sediment into the ponds as intended and designed. <br /> 41.9. 2 These occurrences and their cumulative <br /> effect were upset conditions and/or natural occurrences or Acts of <br /> God beyond the control of Mid-Continent that, in turn, affected <br /> the discharge or volume of discharge at Outfall No. 016 and/or <br /> should have caused the standard of compliance to be measured by <br /> other than TSS (Twelfth Affirmative Defense to WQCD Charges) . <br /> 42. WQCD has neither alleged nor introduced evidence <br /> establishing that effluent from Outfall No. 016 exceeded other than <br /> permit TSS limitations on any of the foregoing dates or for any <br /> and/or all of the foregoing events individually or collectively. <br /> Fifth Claim for Relief <br /> Mining Activity <br /> (Tenth Affirmative Defense to WQCD Charges) <br /> 43 . For its fifth claim for relief, Mid-Continent realleges <br /> the factual allegations contained in paragraphs 1 through 33 and <br /> incorporated herein by this reference. <br /> 44. The mining activity from either January 17 or January <br /> 26 and continuing to and including February 23, 1989 was variable, <br /> it was not continuous, and the mine water discharge into Outfall <br /> No. 016, in part, significantly varied with the mining activity. <br /> Sixth Claim for Relief <br /> MLRD Preemption of Jurisdiction <br /> 45. For its sixth claim for relief. Mid-Continent realleges <br /> the factual allegations contained in paragraphs 1 through 33 and <br /> incorporated herein by this reference. <br /> 46. WQCD and MLRD have concurrent jurisdiction of the <br /> subject matter of this proceeding; MLRD has acted and has by its <br /> actions and in concluding MLRD-NoV No. C-89-003 preempted the <br /> jurisdiction of WQCD (Thirteenth Affirmative Defense to WQCD <br /> Charges) on the basis of this and/or one or more of the following <br /> legal theories: <br /> Mid-Continent Resources, Inc. <br /> Complaint - 10 - <br />