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In its Answer Brief, MCR does not dispute CDH' s description <br /> of the facts and the case stated in CDH' s Opening Brief . <br /> Instead, in what purports to be a "Statement of the Case, " MCR <br /> argues that conditions beyond its control ( i .e. , upset condi- <br /> tions ) and, in particular , DMG' s order to clean up the three <br /> ponds that provide treatment for the mine water discharged from <br /> outfall 016 , caused the CDPS Permit violations charged in the <br /> WQCD' s NOV. See Answer Brief at pp. 3-14 . MCR then pleads to <br /> this Court that "Mid-Continent should not be punished by a second <br /> agency for following orders issued by the first agency. " Answer <br /> Brief at 22. MCR' s "Statement of the Case" is a misguided at- _ <br /> tempt by MCR to divert this Court ' s attention from the legitimate <br /> issues before this Court, by misstating the facts and by raising <br /> issues already decided against MCR and not properly before this <br /> Court . <br /> MCR' s argument in its "Statement of the Case" is the same <br /> argument MCR made first to the Hearing Officer and then to the <br /> District Court in an effort to reverse the Hearing Officer ' s <br /> finding of liability. See Plaintiff ' s Opening Brief at pp 7-11 <br /> (R. 133-137 , Vol. I) and Plaintiff-Appellee ' s Answer Brief at pp. <br /> 3-11 . Both the Hearing Officer and the District Court ruled that <br /> MCR could not, as a matter of law, assert the upset defense be- <br /> cause MCR failed to comply with the conditions under which the <br /> defense may be asserted. Order at 5, paragraph 16 (R. 230, <br /> -2- <br />