Thiebaut et al v. Colorado Springs Utilities et al

Filing 347

ORDER, in re: to "upset" defense, each party file with the court a statement of position concerning these issues, not exceeding 5 pages, no later than May 22, 2009, by Judge Walker D. Miller on 5/13/09. (gms, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Walker D. Miller Civil Action No. 05-cv-01994-WDM-BNB SIERRA CLUB, Plaintiff, v. CITY OF COLORADO SPRINGS, Defendant. __________________________________________________________________ ORDER __________________________________________________________________ With regard to the 21 events for which Defendant claims an "upset" defense, most, if not all, of those events were covered by orders of the CDPHE. See December 29, 2005 Amendment Number One (Joint Exhibit 18), December 4, 2006 Amendment Number Two (Joint Exhibit 20), December 4, 2006 Compliance Order (Joint Exhibit 21) and Notice of Violation (Joint Exhibit 19). The CDPHE determined that these spills were in violation of the Colorado Water Quality Control Act and imposed civil penalties, which are final and not appealable. Neither party directly addresses the impact of these determinations upon the "upset" defense, and in particular, whether these determinations preclude the "upset" defense.

Accordingly, it is ordered that each party file with the court a statement of position concerning these issues, not exceeding 5 pages, no later than May 22, 2009. DATED at Denver, Colorado, on May 13, 2009. BY THE COURT:

s/ Walker D. Miller United States District Judge

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