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Objector for submission of a plan for augmentation be excluded at the hearing as more fully <br /> outlined below. <br /> I. Determinations involving U.S. Army Corps of Engineers 404 permitting <br /> requirements and compliance are non-jurisdictional matters outside the regulatory <br /> authority of DRMS and MLRB for the purpose of Applicant's amendment <br /> application and any opinion testimony and related exhibits alleging non-compliance <br /> offered by any Objector should be excluded at the hearing. <br /> At the Pre-llearing Conference, the hearing officer described Issue # 4 (Exhibit A) <br /> regarding ACE 404 permit issues as a "non jurisdictional" issue. Regardless of what label is put <br /> on the issue, Applicant agrees with DRMS' Recommendation rationale that it need not consider <br /> unconfirmed allegations that Applicant is not in compliance with its 404 permit or that some <br /> additional dredge and fill permitting requirement has been triggered by current conditions on the <br /> Orr property. (Exhibit A, p. 4). Applicant agrees with DRMS that any such concerns over <br /> compliance should be directed to the ACE. (Id.) <br /> As it stands right now, Applicant remains in compliance with its 404 permit. The ACE has <br /> not issued any sort of Notice of Violation. In making its decision regarding AM-01,MLRB should <br /> not substitute its own determination regarding alleged non-compliance with 404 permit <br /> requirements when there has been no such finding by the ACE. Furthermore any such documents, <br /> opinions or testimony proffered by an Objector in an attempt to call into question permit <br /> compliance that does not reflect the actual findings and conclusions of the ACE should be <br /> excluded. <br /> 11. Requirements or conditions related to maintenance of the Bull Seep Channel and/or <br /> imposition of land use conditions or covenants are non-jurisdictional matters outside <br /> the regulatory authority of DBMS and MLRB for the purpose of Applicant's <br /> amendment application and any evidence or testimony related to such matters should <br /> be excluded at the hearing. <br /> In issuing its April 15, 2015 Order (attached as Exhibit B), MLRB specifically found that <br /> Applicant, in installing the slurry wall at the Hazeltine Mine, had failed to minimize disturbances <br /> to the prevailing hydrologic balance of the surrounding area(the Orr property). (Exhibit B,130). <br /> In arriving at this conclusion, MLRB did not accept Applicant's argument that any changed <br /> conditions on the Orr property were primarily the result of surface water from the Bull Seep, much <br /> of it coming from discharges from the Fulton Ditch. These MLRB's findings regarding <br /> groundwater prompted the order for implementation of the Permanent Groundwater Mounding <br /> Mitigation Plan(AM-01)(Exhibit B,Order rB)that is the subject of the upcoming hearing in order <br /> to address groundwater mounding resulting from the slurry wall. <br /> Consistent with the findings of MLRB's April 15, 2015 Order, DRMS, in support of its <br /> recommendation, stated that matters regarding the maintenance of the Bull Seep Channel (Exhibit <br /> A, Issue #7) and any request for the imposition of land use conditions and/or covenants related to <br /> maintenance obligations (Exhibit A, Issue #8) are non jurisdictional because they are outside the <br />