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consistent with the WQCA and its associated regulations, as well as the Division's Civil <br />Penalty Policy. (Dave A. is looking s! otter constituents in the database and will <br />draft a conple of sentences for clarification here). <br />14. The Groups commented that the Order fails to recognize that waters of the <br />Precambrian, Santa Fe, and alluvial aquifers, as well as the West Pit, aze all tributary to <br />the Rito Seto. They also commented that the conclusions of law in the Order do not <br />address tributary groundwater dischazges associated with seepage from the West Pit. <br />The Order states that "[t]he groundwater downgradient from the West Pit is <br />tributary groundwater [and] is hydrologically connected to the Rito Seco, which is 'state <br />waters' as defined by section 25-8-103(19), C.R.S." This conclusion was intended to <br />include all groundwater, including groundwater associated with the Precamb.~ian, Santa <br />Fe, and alluvial aquifers, that flows "dow-ngradient" from the West Pit. <br />The Order also concludes that "[t]he leaching of manganese, sulfate, and <br />inorganic constituents from the West Pit backfill materials through groundwater and <br />through the Rito Seco alluvial aquifer to the surface flow of the Rito Seco, constitutes a <br />"discharge of pollutants" as defined by sections 2~-8-]03(3) & (IS), C.R.S-" This <br />statement was intended to describe the flow path of pollutants from the West Pit through <br />groundwater, while identifying that the WQCA violations occurred at the point where the <br />constituents were detected in the surface watcrs of the Rito Seco. Any pollutants <br />discharged to groundwater (whether tributary or not) that did not actually reach surface <br />waters were not addressed in the Order. <br />The Order's Findings of Fact also recognize that all three aquifers are tributary to <br />the Rito Seco. Paragraph 15 references TR-2ti, speaking specifically to saturttion of the <br />backfill materials in the West Pit by "groundwater inflow from the three aquifers." That <br />pazagraph goes on to say that pollutants leached from the backfilled materials and that <br />groundwater containing elevated levels of pollutants migrated from the West Pit to the <br />Rito Seco aquifer. <br />15. CCCD and PASS commented that the Division's placement of the violations in <br />Category 1 fault (the entity could not have reasonably been expected to be awaze of the <br />circumstances leading to the violation) was inappropriate because there was ample <br />information in the MLRB record to indicate that Battle Mountain knew this violation <br />would occur. <br />Upon review of MLRB's records concerning the San Luis Facility, including the <br />documents to which the Groups referred in their comments, the Division believes that it <br />made the correct determination with respect to fault in this case. As stated ab~~ve in <br />Response #7, the Division does not believe that past consideration by Battle Dountain of <br />a slung wall along the south wall of the West Pit is indicative of its knowledge that <br />violations of the WQCA would occur. <br />80'd 8i: ET 00, 6 6ny 8SSE998£0£:Xpd <br />