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Eric Sott, <br /> JJaanuary 6c 20107 5 RYLEY CARLOCK <br /> Page 5 of 9 & A P P L E W H I T E <br /> Attorneys <br /> During the AM-06 Hearing and subsequent settlement negotiations, one <br /> major concern was the existence of references in Climax's Environmental <br /> Protection Plan ("EPP"), and other related documents, to use the Eagle Park <br /> Reservoir as a possible containment facility in the event of a failure of <br /> Robinson Lake. In order to address this concern, the Stipulations included <br /> specific terms and conditions on Climax's EPP. <br /> (Emphasis added.) That is a true statement. In order to implement the Stipulations relating <br /> to "containment," Section T.5.2.1 of the EPP was amended after the entry of the AM-06 <br /> Order to provide: <br /> Eagle Park Reservoir is no longer within the affected lands boundary of the <br /> Climax site. It is not considered an EPF nor is it ever to be used as an EPF or <br /> for secondary containment by Climax. The Climax EPFs in place in the upper <br /> Eagle River watershed are in fact designed and operated to preclude discharge <br /> of impacted water from mine facilities to Eagle Park Reservoir. <br /> EPRC consented to this revision to the EPP, and required nothing further to address the <br /> "containment" issue. All of this clearly indicates that the term "containment" in the <br /> Stipulations and EPP was used in the narrow technical sense, referring to the containment of <br /> catastrophically released flood waters, tailings, or the like. This is an entirely different issue <br /> and concern from the setting of NPLs. <br /> A technical interpretation of"containment" is also supported by the course of dealings <br /> between the parties. Since the entry of the AM-06 Order in June, 2011, Climax has provided <br /> to EPRC extensive groundwater monitoring data and other information regarding conditions <br /> upgradient of the Reservoir. This information has clearly disclosed the existence of <br /> constituents in the groundwater which can be assumed to reach the Reservoir via surface and <br /> underground processes. The natural attenuation of these constituents in the groundwater has <br /> been occurring continuously for many years, with EPRC's full knowledge. If EPRC <br /> legitimately believed that this constituted an impermissible use of the Reservoir for <br /> "containment," then surely EPRC would have registered some protest during the past five <br /> and one-half years. EPRC's newly expansive definition of "containment" is a rather <br /> transparent change of position that is incompatible with its past actions and inactions. <br /> EPRC and its counsel are sophisticated in water and environmental matters. They <br /> would have understood that Mine permitting would involve innumerable technical <br /> determinations that could bear on water quality in the Reservoir, including but not limited to <br /> the establishment of NPLs. If EPRC intended for the Stipulations to constrain the setting of <br /> NPLs, it would have tried to bargain, and secure such constraints in the Stipulations. It did <br /> not do so. Instead, Section 2(c)(iii) simply provides that the EPP, SPCC, and MCP shall be <br /> "compliant with State, Federal, and local regulations." This negates any suggestion that <br /> Section 2(c) was intended to impose groundwater standards more stringent than those <br /> provided by law. <br />