2017-01-30_GENERAL DOCUMENTS - M1977493

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Mr. Eric Scott, DRMS January 26, 2017 RYLEY OARLOCK Page 4 of 9 & A P P L E W H I T E Attorneys ii. Updates and future revisions to the EPP shall not include reference to any MCP or SPCC that provides for the use of Eagle Park Reservoir as a containment facility. iii. To the extent the SPCC and MCP plans are required to be incorporated in the EPP, the revised EPP will incorporate, by reference, an updated SPCC Plan and MCP Plan that are compliant with State, Federal, and local regulations and do not rely on Eagle Park Reservoir or Clinton Reservoir for any level of containment.2 Climax has fully complied with each of these provisions; and setting NPLs at levels consistent with the Reg 41 Submittal will not result in any violation. On its face, each provision of Section 2(c) imposes constraints only with regard to the contents of the subject documents, as opposed to any condition on the ground or in the water. Compliance with each provision may be determined simply by reviewing the EPP, and SPCC documents (we note that the MCP is no longer required by Colorado Regulation) to ascertain whether their contents comply with the stated constraints. We have reviewed these documents and find no violation of Section 2(c). Further, the setting of NPLs at levels consistent with the Reg 41 Submittal will not cause or lead to any violation. Perhaps recognizing that Climax's environmental documents fully comply with the Stipulations, EPRC argues that NPLs consistent with the Reg 41 Submittal would result in the prohibited use of the Reservoir for "containment" (presumably without authorization in the EPP or SPCC). Specifically, EPRC contends that the attenuation of groundwater constituents in the Reservoir through natural mechanisms constitute utilization of the Reservoir for "any level of containment" in violation of Section 2(c)(iii). Climax engaged Tetra Tech to model the potential impact of groundwater contributions to the Reservoir. The Tetra Tech report was contained in a March 23, 2016 submittal to DRMS; a copy of this report was also provided to EPRC at that time. This EPRC argument apparently relies upon an expansive meaning of the term "containment," under which everything lying within the Reservoir is "contained" by the Reservoir, and therefore the Reservoir is used for "containment" of everything that it contains. This expansive interpretation of"containment" does not survive scrutiny. In the context of an EPP under DRMS regulations, "containment" is a technical term of art referring to the use of a reservoir or other structure to contain flood waters, tailings releases, or the like. EPRC's December 19t' letter tacitly acknowledges that the Stipulations were concerned with "containment" in this narrow technical sense: 2 The Stipulations presented to the MLRB and contained in the AM-06 Order denominate this subsection as "(d)." EPRC's December 19 letter re-designates this as sub-subsection "(iii)"—a convention we will follow since it has no effect on the substance of the matter. 3 Attenuation of groundwater constituents may involve a reduction in concentrations by natural mechanisms including ion exchange, chemical precipitation, adsorption, filtration or biodegradation and hydrodynamic dispersion.