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The Mines in the JD Mine Complex Are Appropriately Categorized as DMOs <br />The MLRA unambiguously defines a DMO very broadly. <br />"Designated mining operation" means a mining operation at which: <br />(I) Toxic or acidic chemicals used in extractive metallurgical processing are <br />present on-site; or <br />(II) Acid- or toxic-forming materials will be exposed or disturbed as a result of <br />mining operations. <br />C.R.S. § 34-32-103(3.5)(a). Thus, the DMO threshold is the mere exposure of disturbance of <br />any "acid ortoxic-forming materials." Therefore, the initial DMO inquiry is complete once the <br />DRMS finds exposed or disturbed toxic or acid forming materials. <br />DRMS documentation and review for the JD-6, JD-8, and JD-9 gives sufficient basis for <br />the DRMS' determination that these mines meet the criteria for a DMO. This determination was <br />based on Synthetic Precipitate Leachate Procedure ("SPLP") tests on waste rock and ore <br />samples. The DMO determination was also based on numerous DRMS inspections of operational <br />conditions conducted in eazly 2005 that analyzed surface conditions, restart conditions, and <br />actual mining operations. The SPLP tests and site investigations confirmed the presence, <br />exposure, and disturbance of toxic and acid forming materials at the mines that could adversely <br />affect human health, property and the environment. Specifically, the SPLP tests confirmed the <br />disturbance of Aluminum, Lead, Selenium, and Arsenic at levels exceeding applicable ground or <br />surface water standards. See July 22, 2005 SPLP results review. Thus, there is no question that <br />these mines disturb toxic forming materials. <br />The only possible exemption from DMO status is where "an operator demonstrated to the <br />board at the time of applying for a permit or at a subsequent hearing that toxic or acidic <br />chemicals are not stored or used on-site and that acid- or toxic-producing materials will not be <br />used, stored, or disturbed in quantities sufficient to adversely affect any person, any property, or <br />the envirotunent...." 34-32-112.5(2). In this case, the SPLP tests alone demonstrate that the JD- <br />6, JD-8, and JD-9 mines disturb toxic producing chemicals in quantities sufficient to adversely <br />affect people, property and the environment. Indeed, the July 22, 2005 data demonstrates that <br />the quantities disturbed have the potential to exceed surface or groundwater standards, and <br />require substantial dilution just to meet these applicable standards (Aluminum - 6x dilution <br />required; Lead - 46x dilution required; Selenium -14x dilution required; Arsenic - Sx dilution <br />required). At that point, the DMO standard was unambiguously satisfied. C.R.S. § 34-32- <br />103(3.5)(a)(II);C.R.S. § 34-32-112.5(2). <br />The finding of DMO status is supported by the MLRB's own statements in the Statement <br />of Basis Specific Statutory Authority and Purpose for the regulations adopted to implement <br />Senate Bi1193-247 where the legislature created DMO status. For instance, the Statement <br />recognizes that DMO status is proper where an "operation has the potential to create or aggravate <br />acidic or toxic drainages from natwally occurring geologic materials mined or disturbed in their <br />operation...because there are contaminant mobility pathways available (such as ground or <br />surface waters) that could lead to adverse impacts to human health, property or the <br />