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environment." Statement at 31 (referencing HRMM Rule 7). Again, the test for a DMO is only whether the operation has exposed or disturbed toxic materials and an exemption aze available in limited circumstances and only where [he operator proves that these materials could not adversely affect human health, property, or the environment. The DMO determination is a much broader one that whether proof exists that the ground or surface water quality standards will be violated. Cotter's Factual Data Does Not Support a Change in the DMO Determination Even assuming, arguendo, that a legal basis could exists for reversing the DMO status determination for JD-6, JD-8, and JD-9, Cotter's challenge to the Division's DMO determination must fail where it is based on three months of "factual data" collected from three lysimeters and one monitoring well. Cotter must carry a heavy burden in challenging the agency's well- documented determination that DMO status applies, as documented in the SPLP results. In the present case, the monitoring data relied upon by Cotter consists of data for only three months during a dry winter. This paucity of data pales in stark contrast to the full five (5) quarters {fifteen months) of data required for consideration of mining permit. See HRMM 6. Overall, three months of monitoring data during periods of the yeaz without any substantial precipitation is insufficient to demonstrate the lack of any adverse impact on persons, property, or the environment -the high standard Cotter must meet to escape regulation as a Designated Mining Operation and avoid the prepazation of an Environmental Protection Plan. C.R.S. § 34- 32-103(3.5)(a)(II);C.R.S, § 34-32-112.5(2). Conclusion Because Cotter has failed to make a credible, threshold factual showing where a heavy burden of proof applies to an operator seeking to avoid DMO status, there exist no grounds to reverse the Division's July 2005 determination that the JD Mines are DMO's. For this reason, and in order to conserve agency resources, the Boazd should summazily dismiss Cotter's appeal and adopt a schedule for submission and review of the Environmental Protection Plan required for the operation of a DMO. RESPECTFULLY SUBMITTED THIS 15T" DAY OF AUGUST, 2007, ravis Stills Energy Minerals Law Center Jeff Parsons Jeff Parsons Western Mining Action Project Attorneys for the San Juan Citizens Alliance, Infonnation Network for Responsible Mining (INFORM), and the Colorado Environmental Coalition 4