1991-07-02_GENERAL DOCUMENTS - C1981017

• Permit No: C1981017
• IBM Index Class Name: GENERAL DOCUMENTS
• Doc Date: 7/2/1991
• Doc Name: Civil Action No. 91 CV177 Summons
• Permit Index Doc Type: General Correspondence
• Media Type: D
• Archive: No

Eighth Claim for Relief
Following Orders of MLRD
50. For its eighth claim for relief, - Mid-Continent
realleges the factual allegations contained in paragraphs 1 through
33 , 40 and 41 which are incorporated herein by this reference.
51. By following the orders and mandate of MLRD to clean
the Outfall No. 016 ponds, the events and complaints of discharge
non-compliance from and after February 3, 1989 are the direct and
proximate result of the exercise of regulatory and enforcement
authority of an agency of the State of Colorado and not those of
Mid-Continent.
WHEREFORE, Mid-Continent prays that the Court review the
evidentiary proceedings conducted by the hearing officer January 9,
10, and 11, 1990, and the hearing officer's findings, dated
November 10, 1990, and determine and declare that the determina-
tions of the hearing officer are clearly erroneous and unsupported
by substantial evidence, and specifically determine and declare
that:
1. The snowmelt precipitation events, the snowfall
precipitation events, the avalanche, the major snow storm, the
dragline move in events, the dragline dredging of the Outfall No.
016 ponds, the winter snowfall conditions, and the freezing
conditions from November, 1988 through January, 1989 individually
and collectively constitute upset events within the meaning of the
pertinent regulations;
2 . Upset conditions excuse upset-caused non-compliance with
standards set forth in the discharge permit;
3 . Employees of the State of Colorado, of both WQCD and
MLRD, had actual knowledge of all events as they transpired in Coal
Basin as they were known to employees of Mid-Continent relating to
the Outfall No. 016 ponds freeze in January and February, 1989;
4. Actual knowledge by enforcement employees of the State
of Colorado renders moot any requirement in the discharge permit
for written notification of an event that may be claimed as an
upset condition;
5. The written notice requirement contained in the
discharge permit, if construed by the agency to diminish the legal
right to invoke a regulation defined upset condition under these
circumstances, is ultra vires and an unauthorized exercise of
purported authority that improperly diminishes a legal right;
6. The snowmelt precipitation events, the snowfall
precipitation events, the avalanche, the major snow storm, the
Mid-Continent Resources, Inc.
Complaint - 12 -