2008-11-06_REVISION - M1980244 (3)

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V-A-l9??o-a44 Keffelew, Berhan W#1 From: Berry, David Sent: Thursday, November 06, 2008 12:09 PM To: 'Jeff Fugate; Keffelew, Berhan; Cheryl Linden; Waldron, Tony Cc: Berry, David Subject: RE: Draft of Division decision document for review and edit All - The additional details referenced by Jeff will further inform our pending discussion and final decision document. In the meantime, I offer the following regarding water monitoring and the definition of "closure" as referenced in the proposed stipulations: Water Monitoring - DRMS can and must require any surface or groundwater monitoring deemed necessary to assess hydrologic impacts related to a mining operation. Any stipulation must be crafted to include requirements consistent with our authority. We cannot stipulate an issue that is beyond our authority. Any proper stipulation becomes an enforceable requirement of the DRMS permit. DRMS could require surface water monitoring under DRMS authority that includes components that are different or the same as the location, frequency or parameter requirements mandated by CDPHE. We would always endeavor to not duplicate such requirements as a matter of proper public policy, but we are not precluded from requiring monitoring at a discharge point as a requirement of our permit. We do not have authority to administer NPDES permits, but we could theoretically require monitoring under a DRMS permit that involves the same location, frequency, and parameters as are required separately by CDPHE under the NPDES process. In situations where potential duplication exists, we would coordinate our activities with CDPHE to avoid dual or overlapping regulation or enforcement. Certainly, any attempt to enforce like provisions under multiple authorities would be inappropriate, and likely subject to rejection if reviewed by a court (as occurred at Mid Continent many years ago). In the present case, if the proposed stipulation is in fact intended to precisely duplicate already existing NPDES requirements, then we should question the merits of such a proposal, based on the above concepts and the obvious redundancy, but we are not necessarily precluded from incorporating parallel requirements. Parallel requirements will place an unwanted coordination burden on DRMS to ensure that DRMS and CDPHE do not attempt dual enforcement Closure Definition - In reference to the closure issue, I recommend that an additional sentence should be added to define the point at which closure is agreed to occur, and at which point the five year timeframe is agreed to initiate. I suggest that we define closure as that time when the last of all disturbed areas are backfilled, soiled and seeded. I will be at a meeting with the Forest Service in Lakewood this afternoon, but will try to check email this evening. I will be back in the office tomorrow. Thank you, David -----Original Message----- From: Jeff Fugate (mailto:Jeff.Fugate@state.co.us] Sent: Thursday, November 06, 2008 11:32 AM To: Keffelew, Berhan; Cheryl Linden; Berry, David; Waldron, Tony Subject: RE: Draft of Division decision document for review and edit All, 1