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regazding DMO status should be upheld. However, the Division's unlawful Mazch 2006 grant of <br />a DMO exemption must be rejected. <br />3. The Division's Regulations Prevent DMO Exemptions for this 112 <br />Operation <br />Pursuant to the plain language of the applicable MLRB rules, if a mining operation is permitted <br />as a 110 operation, it may avail itself to the Rule 1.1(14)(e) exemption to DMO status. A mine <br />permitted as a 112 operation, however, may not. The Board has correctly determined in its <br />September 13, 2006 Order that the SM-18 is a 112 Operation. <br />According [o the Division's Hardrock Mining regulations, the Mineral Rules and Regulations of <br />the MLRB for Hazd Rock, Metal and Designated Mining Operations allow for regulatory <br />flexibility for DMO determinations for 110 operations that is not available for 112 operations. <br />Specifically, Hard Rock/Metal Mining Rule (HRMM Rule) 1.1(14) defines "Designated Mining <br />Operation" as "a mining operation at which...(b) toxic or acid-forming materials will be exposed <br />or disturbed as a result of mining operations...." That Rule definition goes on to allow the <br />possibility for an exemption for 110 operations that is not available to 112 operations: "[m]etal <br />mining operations, permitted under Section 34-32-110, C.R.S. 1984, as amended, which do not <br />use or store designated chemicals, shall be exempt from the requirements applicable to <br />Designated Mining Operations, unless they have a potential to produce acid mine drainage in <br />quantities sufficient to adversely affect any person, property or the environment." HRMM Rule <br />1.1(14)(e). See also, HRMM Rule 7.2.4(1) ("The Office's determination of a Designated Mining <br />Operation is based on the criteria described in the definition for Designated Mining Operation in <br />Paragraph 1.1(14)."). <br />In the present case, an erroneous application of the HRMM Rule 1.1(14)(e) exemption appears to <br />be the basis of the DRMS's determination that the SM-18 Mine is not a DMO. See Mazch 9, <br />2006 letter from H. Bruce Humphries to Glen Williams, Cotter Corporation Re: SM-18 Mine, <br />Permit No. M-1978-316, Determination ofNon-Designated Mining Operation Status (finding <br />that "Cotter Corporation has satisfactorily demonstrated that that operation does not expose or <br />disturb acid or toxic materials in quantities that adversely affect human health, property or the <br />environment."). However, because the SM-18 Mine is a 112 operation, HRMM Rules 1.1(14) <br />and 7.2.4 do not provide for any exemption from DMO status, so long as toxic or acid-forming <br />materials will be exposed or disturbed as a result of mining operations. In this case, as <br />demonstrated herein, the record is clear that the waste rock leach tests performed by the DRMS <br />evidence toxic materials exposed, disturbed, and transported into the groundwater at the mine <br />site, including aluminum, selenium, uranium, lead, and zinc. See June 15, 2005 Memorandum <br />from Harry Posey to Steve Shuey and Russ Means Re: SPLP results review: Cotter Corporation, <br />SM-18 (Wright) Mine; M-1978-116. <br />Based on application of the appropriate legal standards the SM-18 Mine should be properly <br />recognized as a DMO in accordance with the unambiguous and plain language of MLRB's <br />HRMM Rules. <br />12 <br />