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On August 25, 2005 Cotter Corporation filed aone-page letter described as an "appeal" of the <br />July 25, 2005 DMO determinations. The DMO appeal was based entirely on groundwater <br />hydrology models that had not yet been designed or conducted. In later correspondence to DMG <br />from Peter Kearl (a Cotter Contractor) dated November 28, 2005, Cotter argued that based on its <br />modeling, toxic contaminants at the four mines "pose no significant threat to underlying <br />groundwater resources." However, there is no indication in the study, the file, or relevant DMO <br />standards as to what constitutes a "significant threat "Regardless, the groundwater models and <br />the "significant threat" assertions, are irrelevant to an appeal of a DMO determination or an <br />application for an exception to the DMO status. <br />Regardless, the data and conclusions presented by Cotter do not constitute reliable and <br />conservative studies upon which the DMG can base a decision to treat the subject mines asnon- <br />DMO or DMO-exempt facilities. The December 2, 2005 internal DMG memo from Russell <br />Means to Harry Posey and Kate Pickford correctly points out that the model results were <br />presented to DMG without underlying data and description of the model parameters. The file <br />also contains letters indicating that a Board consideration of the Cotter appeal has been delayed <br />several times in order that the DMG staff can consider the various Cotter submissions. Although <br />it is crucial for the DMG to be fully informed of the groundwater impacts, these types of <br />considerations are properly done in context of reviewing EPPs and other requirements of DMO <br />regulatory program. It would be in the interest of efficient use of DMG resources to direct staff <br />to suspend its review of Cotter's model and to begin taking those measures appropriate for newly <br />determined DMOs. <br />Cotter Corporation Has Not Demonstrated non-DMO or DMO-Ezempt Status <br />The Mined Land Reclamation Act ("MLRA") defines DMO. <br />"Designated mining operation" means a mining operation at which: <br />(I) Toxic or acidic chemicals used in extractive metallurgical processing are <br />present on-site; or <br />(II) Acid- ortoxic-forming materials will be exposed or disturbed as a result of <br />mining operations. <br />C.R.S. § 34-32-103(3.5) (a). Here, there is no question that toxic-forming materials have been <br />and will be exposed and disturbed at the four mining operations as a result of past mining, <br />current conditions, and planned mining operations. The July 25, 2005 Notice of Determination <br />clearly states that the mines meet the criteria for a DMO. Id. (acid- or toxic-forming materials <br />exposed or disturbed). <br />Cotter does not contest that the DMG's tests revealed waste rock on these sites that aze acid- and <br />toxic forming nor does Cotter allege that such material will not be exposed or disturbed. Instead, <br />Cotter apparently pursues a strategy that uses modeling tc argue that the toxicity of contaminant <br />plumes from the sites may meet "certain applicable water quality parameters" if sufficiently <br />diluted before reaching ground and surface water bodies. However, the pollution dilution <br />strategy provides no basis for anon-DMO finding. <br />