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maintain the Outfall No. 016 pond system thereby causing the black discharge from <br />Outfall No. 016. <br />We must emphasize that MLRD's order to Mid - Continent to clean the Outfall <br />No. 016 ponds contributed significantly to the discharge violation. The MLRD- ordered <br />wintertime cleanup necessitated that Mid - Continent clear the roadway to the Outfall <br />No. 016 ponds of 7.5 to 8 feet of snow, start -up and position a dragline, clean the three <br />ponds with the dragline, and haul the clean -out away in trucks. The clean -up <br />operation caused the Outfall No. 016 ponds to discharge sediments and adverse <br />effluent into Coal Creek and, in turn, the Crystal River. <br />Mid - Continent should not be punished by a second agency for following orders <br />issued by the first agency. MLRD knew or should have known that cleaning the ponds <br />during the winter could be disastrous. In an alpine setting, pond cleaning is a <br />summertime task. Careful investigation would have suggested that something other <br />than sediment loading was the cause of the adverse discharge. MLRD's directive in <br />early February of 1989 to clean the Outfall No. 016 ponds was the direct cause of the <br />adverse February, 1989 discharge cited in the MLRD NoV and the duplicative WQCD <br />21 The witness Jones testified that the pond cleaning procedure was to start at the <br />lower elevations and clean those ponds, then work upward in elevation to the higher ponds as <br />the snow receded; cleaning ponds was an all- summer project (3 Tr. Jones, 59). He testified the <br />Outfall No. 016 series of ponds were cleaned twice in 1988 (id. at 106). All the ponds were <br />cleaned after the snow had left, then sometime in late October the uppermost pond was again <br />cleaned at the end of the pond - cleaning season (id. at 57). The middle and lower ponds did <br />not require recleaning (id.) The uppermost pond, which received the inflow from upstream <br />disturbed areas and the mine discharge, received most of the sediment (id. at 58). Based on <br />engineering calculations, the witness Rovey determined that given the capacity of the upper <br />two ponds it would take 800 days before the complete sediment volume was occupied (2 Tr. <br />Rovey, 248). <br />Mid - Continent Answer Brief <br />- 22 - Appeal No. 93 CA 297 <br />