2017-01-30_GENERAL DOCUMENTS - M1977493

• Permit No: M1977493
• IBM Index Class Name: General Documents
• Doc Date: 1/30/2017
• Doc Name: Compliance with WQCC Rule
• From: Ryley Carlock & Ap plewhite Attorneys
• To: DRMS
• Email Name: ECS
• Media Type: D
• Archive: No

Mr. Eric Scott, DRMS
January 26, 2017 RYLEY CARLOCK
Page 6 of 9 & A P P L E W H I T E
Attorneys
In sum, the Stipulations are irrelevant to the setting of NPLs. Nothing in the
Stipulations indicates that the parties or the MLRB intended to abrogate or replace the
regulatory standards for setting NPLs. EPRC's attempt to characterize the historic and
ongoing attenuation of groundwater constituents as an impermissible "containment" is
contrary to the accepted meaning of the term, the parties' negotiations and intentions in
entering into the Stipulations, and the conduct of the parties since the Stipulations were
adopted by the MLRB. EPRC's strained reliance on the Stipulations is merely an attempt to
shift attention away from the fact that there is no regulatory basis for objecting to NPLs that
are consistent with the Reg 41 Submittal.
B. The Settlement Agreement
EPRC's letter argues that using the Reservoir for "containment" of pollutants in
groundwater would violate not only the Stipulations in the AM-06 Order, but also the
Settlement Agreement. That is not accurate for the reasons just expressed: the natural
attenuation that has been occurring in area groundwater and the Reservoir for many years is
not an impermissible use of the Reservoir for "containment."
Even more dubious, however, is EPRC's suggestion that the Division should be
concerned with a purported breach of the Settlement Agreement. As will become clear
below, EPRC's invocation of the Settlement Agreement is yet another facet of its multi-part
strategy of diversion and misdirection away from the governing regulatory standards.
As noted above, Climax acknowledges that the Stipulations may be properly
considered by the Division to the extent they are relevant to a pending decision. It must be
emphasized, however, that the Stipulations acquired regulatory significance because they
were adopted by the MLRB as conditions of the AM-06 Permit, not because they are a part of
the private Settlement Agreement between the parties. The Settlement Agreement contains
other features that were not adopted by the MLRB:
A. The parties agreed that the 1992 Reservoir Purchase Agreement
regarding Clinton Gulch Reservoir, the 1998 Purchase and Sale Agreement
regarding Eagle Park Reservoir, and all amendments thereto remain in full
force and effect. Settlement Agreement, § 3.
B. Climax agreed to execute a certain stipulation in Water Case
No. 06CW252 regarding Clinton Gulch Reservoir storage. Settlement
Agreement, § 4 and Exhibit B thereto.
C. The parties agreed to execute the Remedies Agreements
concerning Eagle Park Reservoir and Clinton Gulch Reservoir. Settlement
Agreement, § 5 and Exhibits C and D thereto.
Nothing in the AM-06 Order suggests that the MLRB adopted these provisions or the
Settlement Agreement itself(as distinct from the Stipulations that were separately submitted