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It is first necessary to note that the Division assumes that the Nix operation presents a risk to <br /> groundwater quality. The Operator has never concurred with this assessment, and the record's <br /> copious discussion of water and mining operations fails to elucidate any significant risk to water <br /> quality. The AM1 groundwater monitoring program incorporated a water quality component as <br /> a compromise. However, the application of the Division's Rule 3.1.7 generally requires a <br /> reasonable potential that the operation will adversely affect water quality. The Nix site, as the <br /> DiNatale report concludes, does not have that reasonable potential. <br /> The Division's spontaneous and unsupported introduction of presumed water quality impacts <br /> has been a consistent source of confusion in the record of M-2001-046. It is noteworthy that <br /> the directly adjacent M-2015-033 operation did not experience any such scrutiny in <br /> fundamentally the same regulatory regime. There is no pervasive or even isolated condition in <br /> this vicinity, no affected party, and no permitting history that justifies the extraordinary level of <br /> concern placed on groundwater quality at the Nix site. <br /> Overall, the Operator finds it difficult to square the conclusions of these experts with the <br /> Division's various assertions and examples manifesting a presumption that sand and gravel <br /> mining, largely in a slurry-walled situation at the Nix site, will cause water quality conditions to <br /> decline. The Division's assumptions in this regard are unreasonable given the paucity of data in <br /> the M-2001-046 record supporting such a conclusion. <br /> As an example of an approved groundwater monitoring program, the Division forwarded to us a <br /> lengthy compilation of both baseline monitoring results and a mitigation plan for a <br /> controversial project in the Colorado River basin that was ultimately disapproved by the Mined <br /> Land Reclamation Board ("MLRB"). The subject matter of opposition and the stated reasons for <br /> MLRB denial of that project focused heavily on groundwater conditions. As the Operator of a <br /> distant, non-controversial, already-approved project on a South Platte River tributary, we see <br /> no obvious factual parallel or precedential value for the Peak Ranch case. In terms of the actual <br /> science, this Operator has submitted well monitoring data and lab results comparable in scope <br /> to the bulk of the technical content of the purported model plan. <br /> On the final page of its March 10th letter, the Division apparently seeks to implement and <br /> enforce the groundwater monitoring program as it was submitted with AM1. AM1 was <br /> approved in June 2021, and the groundwater monitoring program was structured to establish <br /> pre-mining water quality conditions and subsequent monitoring of any effects on water quality <br /> caused by mining. According to initial sampling results, certain monitoring wells on the <br /> perimeter of the permit site showed several water quality exceedances. It may be appropriate <br /> to discuss how these ambient conditions are reflected in water quality compliance plans, <br /> especially as WQCC Regulation 41 provides for alternate accounting of such conditions in <br /> certain circumstances. The Operator also agrees with the Division that it is appropriate to <br /> conduct confirmation sampling of exceedances to ensure that proper collection and lab <br /> procedures were followed. <br /> 2 <br />