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dragline move in events, the dragline dredging of the Outfall No. <br /> 016 ponds, the winter snowfall conditions, and the freezing <br /> conditions from November, 1988 through January, 1989 individually <br /> and collectively give rise to alternative measuring standards <br /> rather than the TSS standard used by WQCD; <br /> 7. The evidence adduced at the hearing, including but not <br /> necessarily limited to the precipitation events, each of them, and <br /> the fluctuating mining activity, but specifically including WQCD's <br /> witnesses' testimony that the Crystal River cleared up after the <br /> initial sediment discharges, rebuts any permissible inference that <br /> the Outfall No. 016 discharges were continuous or the same over the <br /> entire period complained of by WQCD. <br /> 8. The hearing officer's finding and conclusion that there <br /> were 29 days of continuing violation are not supported by the <br /> evidence; specifically they are not supported by the testimony of <br /> WQCD's own witnesses who testified that the Crystal River turned <br /> dark and then cleared up and turned dark again and cleared up <br /> again, alternately, at least twice; as a matter of law no <br /> permissible inference may be drawn from this uncontradicted <br /> evidence that effluent discharges on non-sampled dates during this <br /> alleged 29-day period were the same as sampled dates, particularly <br /> in view of the fluctuations of mining activity during such period; <br /> 9. The exercise of jurisdiction over the January and <br /> February, 1989 freezing of Outfall No. 016 ponds by MLRD, as an <br /> agency of. the State of Colorado, constitutes an assumption and <br /> exercise of primary jurisdiction over the subject matter by and on <br /> behalf of the State of Colorado; this assumption and primacy of <br /> jurisdiction by MLRD renders its civil penalty assessment and <br /> settlement for this circumstance res adjudicata and/or an accord <br /> and satisfaction as between Mid-Continent and the State of <br /> Colorado; therefore, WQCD is legally precluded and estopped from <br /> enforcing its civil penalty claims over a matter that has already <br /> been civilly enforced by another state agency with concurrent <br /> jurisdiction, or WQCD is legally precluded from asserting any <br /> claims for civil relief from and after the effective date of MLRD <br /> ordered actions to abate the Outfall No. 016 ponds' freezing <br /> conditions. <br /> DATED this 27th day of June, 1991. <br /> DELANEY & BALCOMB, P.C. <br /> Atto at Law <br /> By <br /> Edward Mulhall, Jr. <br /> Registration No. 1374 <br /> Mid-Continent Resources, Inc. <br /> Complaint - 13 - <br />