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• III IIIIIIIIIIIII III i <br />999 <br />HOWE PIT M-78-052 <br />(I (/27/01 Mtg) <br />I. We clearly have irrefutable evidence of significant erosion both onsite &offsite as a direct result of the <br />5/5/01 breach. <br />2. The issue or source of conflict between the parties involved has been what was the cause of the levee <br />failure breach? <br />3. The operator's claim is that failure is due to natural causes and that there is no connection between their <br />mining activities and the levee failure. The Division does not have enough information at this time to <br />verify and affirm their claim. We have asked for additional information [o help verify. See 11/21/0] <br />correspondence. <br />4. Since the burden of proof is on the Division to develop enough evidence to prove a violation has <br />occurred, we offer the Board the following argument: a) the alignment and associated construction of the <br />relocated Bull Seep did contribute to the weakening of the adjacent levee, b) the operator has <br />acknowledged weakening and erosion of the levee prior to the May 5, 2001 event due to natural causes, c) <br />because of the close proximity of the relocated seep to the S.Platte River (60' setback) ongoing <br />maintenance of the levee prior to and during the May 5, 2001 flow event was necessary and critical in order <br />to preserve the structural integrity of the relocated Bull Seep, ie: a levee failure will disrupt operation of the <br />mine drainage system, d) the Division does not have clear and strong evidence of a good faith effort and <br />due diligence on the part of the operator to maintain the structural integrity of the levee prior to and during <br />the May 5, 2001 event. <br />5. The assignment of fault (or levee failure is unclear at this time. The % of fault that can be attributed to <br />natural causes and the % of fault that can be attributed to the alignment and construction of the relocated <br />Bull Seep may never be known. However, we are confident that the operator was negligent in not <br />maintaining the structural integrity of the levee prior to the May 5, 2001 event; the levee being a structure <br />within their permit area necessary for the operation of their incorrectly relocated Bull Seep. We are also <br />confident that if the operator had been prudent in maintaining the levee, the resulting effects from the May <br />5, 2001 event would be significantly less. <br />6. If the Board does find a violation for offsite damage, then what we gain is another "hammer" in the form <br />of a civil penalty (s'tiff) which may be waived or reduced if the on-site corrective actions are implemented <br />on schedule and the required certifications are submitted by the dates previously ordered by the Board. <br />7. Until such time that the operator can provide strong evidence (as requested in item 3) that they are not at <br />fault, I recommend that we proceed with the notice of possible violation. The Division will be prepared, if <br />necessary, to present the possible violation before the Board at the December, 2001 Meeting. <br />