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II. THE DIVISION IMPROPERLY DETERMINED THAT THE JD-6 AND JD-8 MINES SHOULD BE CLASSIFIED AS DESIGNATED MINING OPERATIONS. COTTER'S SUBMISSIONS SUPPORT A FINAL DETERMINATION THAT THE MINES ARE NOT DMOs. A. The Statutory and Regulatory Provisions Support Cotter's Requests. The Act at C.R.S. 34-32-103(3.5)(a)(II) defines a "designated mining operation" as: "a mining operation at which acid- or toxic-fom~ing materials will be exposed or disturbed as a result of mining operations." The Act at section 34-32-103(1) fiu-tlrer defines "acid or toxic producing materials" as "natural or reworked earth materials having acid or toxic chemical and physical characteristics." The Division's January 17, 2006 review, after reciting the definition of "acid or toxic producing materials" contained at CRS 34-32-103(1), states: The Division considers toxic material, in this [Cotter's] context, to be any dissolved constihtent whose concentration exceeds applicable groundwater standards as defined in Regulation 41 - "The Basic Standards for Groundwater" -established by the Colorado Water Quality Control Commission. While the ore and waste rock from the JD-6 and JD-8 Mines have the potential to release metals in concentrations that may exceed ground or surface water standards for certain constituents, the analysis does not stop there. The Act slates at section 34-32-112.5(2): "If an operator demonstrates to the Board at the time of applying for a permit or at a subsequent hearing that acid- or toxic-producing materials will not be used, stored, or disturbed in 'All documents referred to herein are contained in the administrative record of these proceedings, and specifically are attached [o the July 27, 2006 letter from the Division to each member of the Board which includes a copy of the "Division of Minerals and Geology, Designated Mining Operation Penttit Status Review" for Cotter's permitted sites, including the JD-6 and JD-8 Mines. For the convenience of the Board and the parties, Cotter has provided copies of the materials enclosed with the Division's March 9, 2006 letter as Attachments A (JD-6 Mine) and B (JD- 8 Mine, and other documents referenced herein as Attaclunents C and D. 2