2020-08-10_PERMIT FILE - M1999042 (2)

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Russ Means,Minerals Program Director Colorado Division of Reclamation,Mining&Safety August 4,2020 Page 2 of 3 and the impacts of all aspects of the mining operation on the resident herd of big horn sheep that frequent the slopes above the mine and utilize the area for winter range. The mitigation requirements of the County's permit are dated and will become more so if the mine is allowed to remain dormant for a longer period of time. These enumerated impacts and others must have relevant mitigation requirements, timely ascertained in relation to the operation of the mine. Pitkin County's permit is tied to the State permits for this mining activity. II. Temporary Cessation is Not Permited Under Colorado Law Due to a Prolonged Period of Nonproduction. Temporary cessation is defined as a period of nonproduction in the life of a mine. Info. Network for Responsible Mining v. Colo. Mined Land Reclamation Bd., 2019 COA 114, ¶ 13, 451 P.3d 1245, 1248 (July 2019) (citing Mined Land Reclamation Board Hardrock Rules 1.1(53) & 1.13.2, 2 Code Colo. Regs. 407-1); see also C.R.S. § 34-32-103(6)(a). The Colorado Court of Appeals recently confirmed that temporary cessation is a factual status that begins when production ceases on the site, regardless of any administrative status. Id. at¶¶ 11, 13. The same court ordered termination of mining operations and compliance with reclamation standards at a mine where nonproduction (i.e., temporary cessation) had continued for more than ten years. Id. at¶ 11; see also id., at¶ 7 (quoting the MLRA (§ 34-32-103(6)(a)(III)): "[i]n no case shall temporary cessation of production be continued for more than ten years without terminating the operation and fully complying with the reclamation requirements of this article."). The same statutory and regulatory requirements referenced by the Court of Appeals also apply to permits for construction materials. See § 34-32.5-103(11)(c); Construction Materials Rule 1.13.9. Pitkin County asserts that the Construction Materials Reclamation Act provides no basis for any further periods of TC for the White Banks Mine and that the permit must be terminated and final reclamation commenced. No production has occurred at the White Banks Mine in more than a decade. In fact, recent correspondence with the U.S. Forest Service confirms that the last production from White Banks occurred in 2003, approximately 17 years ago. See Exhibit 1 (U.S. Forest Service email correspondence dated February 28, 2020). The DRMS electronic files also support a conclusion that no production has occurred for over ten years. The February 20, 2020 letter from DRMS noticing a hearing in this matter references annual reports submitted by the operator identifying August 2014 as the last reported date of production and seeks to base the TC period from this date. However, the file demonstrates that the activities in 2014 did not include production. Specifically, the operator's annual report submitted in January 2015 states that the 2014 activities consisted entirely of the "removal of equipment" from the site. Indeed, the operator specifically crossed out the references to both "excavation" and "processing" from the report form. Further, in a letter from the operator to DRMS dated August 16, 2013 protesting an increase in the surety amount, the operator states that: "The existing bond of approx. $15,000 was recalculated less than three years ago and the conditions on site have not changed. There have been no additional structures built and no surface activity has occurred other than one piece of