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Vol . III ) . **l MCR did not cross-appeal the District Court ' s <br /> ruling on the upset defense. Therefore, MCR ' s attempt to revive <br /> this issue before this Court is improper and should be stricken. <br /> More serious than MCR' s attempt to appeal in its Answer <br /> Brief an issue not properly before this Court , is MCR' s omission <br /> of facts and mischaracterization of the evidence in the record to <br /> support the improperly raised issue. For example, MCR' s <br /> "factual" account omits the fact that "Step 1" of DMG ' s clean-up <br /> order requires MCR to adopt measures to control the sediment dis- <br /> charge while cleaning up the ponds. See DMG' s NOV, "Steps Neces- <br /> sary to Abate Violation, " "Step 1" (R. 624, Vol . VIII ; R. 634 , <br /> Vol . VIII ) . The responsibility to ensure proper clean-up was <br /> MCR ' s, not DMG' s or the WQCD' s. <br /> MCR' s account also omits the fact that undisputed evidence <br /> in the record shows that MCR' s discharge out of Outfall 016 was <br /> in violation of the CDPS Permit weeks before DMG ever ordered it <br /> to clean up the treatment ponds. DMG' s NOV and clean-up order <br /> was issued on February 23, 1989. Water quality samples admitted <br /> and relied upon by the Hearing Officer , including samples <br /> obtained and reported by MCR, indicate that the concentration of <br /> 1**Since the issue was resolved against MCR as a matter of law, <br /> there are no factual findings on the causes of the violations for <br /> this Court to review. <br /> -3- <br />