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JUN-18-1559 1207 F.OTHGEREEF. JOHNSONB~rONS 30~ 638 5~5~ P. 17 <br />• • <br />The ne=t pertinrnt statutory provision is a warranty of performance. "No permit may be <br />issued ands this article until the board receives performance... waiTdrttiCS as descabed in <br />subsecrion (2)..." ¢ 34-32-117 (1). "A 'performance warranry' shall consist of a written promise <br />tv the board, by the ogentat, to comply with all requirements of this article. Performance <br />warranties shall be in such farm as the board may describe." ¢ 34-32-117 (1). No meaningfully <br />concrete performance warranty may be created with respect m disturbattces of the hydrologic <br />balance, and water quality and quantity, in the absence of baseline data. <br />The prncipal enforcement provisions of the Colorado Mined Land Reclamation Ad make <br />a distinction between past and present violations. That is, "whoever the board ar office has <br />reason to believe that there has occurred a violation of an order, permit, notice of intent, or <br />regulation issued under the authatiry of this article, writtEa notice shall be given to the operator <br />or prospector of the alleged violation." ¢ 3432-124 (I). In rnntrast, "if the boazd determines <br />that there czists any violation of say provisions of this article or any notice, permit, or rcgulation <br />issued or promulgated under authority of this article, the board may issue a cease and desist <br />order." ¢ 34-32-124 (2)(a). <br />In the absence of baseline data which allows for the establishment of meaningful <br />standards, enforcement bewmes problematic. A permit which includes no standards cannot be <br />the basis For determining past or present violations. Moreover, allowing the operator to defer the <br />establishment of spe~fic standazds compromises the enforcement position of the agency, by <br />allowing the operator to incur substantial capital expenditures before the objective standards arc <br />set. The ageoty will be much more vulnerable to prLSSUre from a variety of sources if the <br />standards are effectively created after the project is already underway; there is also a grater risk <br />that the standards as eventually established would reflect an environmental compromise that <br />enables the pmjed to proceed. <br />The Hard Rock/Meral. Mining Rubs and Regulations of the Colorado Mined Land <br />Reclamation Board include provisions consistent with the requirement that a data baseline must be <br />established to r»uy satisfy the requirements for permit applieadons under Colorado law. E. g., <br />Rule 3.1.7 "Ground Water-Specific Requirements," subsection (2)(c)(ii), subsection (>)(d)(viii). <br />See also, Rule 6.4.7(2)(c), "Exhibit G-Water Information,' which ochoes the statutory <br />requirements for duties of operators. <br />SUMMARY OF OBIECTTON <br />The Applicant's reclamation permit application, as written, violates the statutory <br />requiremrnt of gathering baseline data befoz the issuaacc of a reclamation permit. In addition, <br />the objective of the groundwater sad surface water monimring plan is to establish tecagnimble <br />trends in water quality such that any deviation from the established characteristics :ere <br />recognisable. Rccogniable trends (baseline dam) cannot occuc concurrently with the <br />development of the Applicant's project as is outlined in the reclamation permit application. Bah <br />the drilling and development of wells and the well completion methodologies may cause <br />