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Fred R. Banta, Director August 10, 1990 <br /> MLRD, Denver, CO 80203 Page 6 <br /> for Settlement, "an extraordinary effort in the shortest time <br /> possible. " The Justification for Settlement notes that: <br /> The operator began cleaning the pond in extremely <br /> adverse conditions. There was at least four and a <br /> half feet of snow that had to be cleaned from the <br /> road to gain access. Ponds were frozen which also <br /> complicated the process. Additionally, no equipment <br /> was available on-site to do the work and the <br /> contractors were not very willing to undertake this <br /> project given the poor conditions. The ponds were <br /> cleaned by abatement deadline. . . . <br /> As to environmental damage, the assessment conference <br /> officer found in the Justification for Settlement that, " [g] iven <br /> the general turbidity of the receiving streams it is difficult to <br /> assess what can be attributed to the mine. " The assessment <br /> conference officer further notes that bio-monitoring of the <br /> effluent was performed during pond cleaning and "the discharge <br /> passed the acute and chronic levels. " <br /> The issue raised by your Show Cause Order is whether the <br /> violation occurred as a result of an unwarrantable failure by Mid- <br /> Continent to comply with the law. It did not. <br /> The violation was issued, and the conference officer agreed <br /> issuance was proper because stated TSS effluent limitations were <br /> exceeded. Effluent limits were exceeded because the ponds <br /> malfunctioned as a result of severe, adverse and unprecedented <br /> weather conditions. However, exceedances of effluent limitations <br /> resulting from unusual, severe weather conditions does not <br /> establish unwarranted failure. Neither do the other facts and <br /> circumstances establish an unwarranted failure by Mid-Continent. <br /> Mid-Continent had provided for mine drainage treatment. The <br /> Outfall No. 016- ponds were properly designed and maintained <br /> according to the approved plan. These ponds were twice cleaned <br /> during the summer/fall of 1988, once at the beginning of the <br /> outdoor work season in early summer and again just before the onset <br /> of winter. Mid-Continent made the reasonable assumption that the <br />