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Cheryl Linden, Esq. <br />June 21, 2010 <br />Page 3 <br />("No acid-forming materials exist onsite. Native rock at the Schwartzwalder <br />Mine is not acid-generating. Instead, it is classified as having a low potential to <br />generate acidic drainage, and no acidic drainage has occurred from the mine or <br />waste rock facilities to date."). While the EPP at 9-49 states that "[w]ater <br />seeping into the upper levels of the mine is impacted by acid rock drainage," <br />seepage does not constitute handling. If DRMS is alleging that "handling" <br />relates to building a pad decades ago, any statute of limitations has long run out <br />on such "handling." The evidence therefore indicates that Cotter has not <br />violated section 34-32-116(7)(c). <br />The second statutory provision cited is "failure to minimize disturbances to the <br />prevailing hydrologic balance of the affected land and of the surrounding area <br />and to the quality of water in the surface and ground water systems after the <br />mining operations and during reclamation," which DRMS alleges is a violation <br />of Colo. Rev. Stat. § 34-32-116(7)(g). DRMS does not identify the "prevailing <br />hydrologic balance." The prevailing hydrologic balance should be a mine in a <br />flooded, and not a dewatered, state. Section 34-32-116(7)(g) also recognizes <br />that it is not possible as a practical matter to absolutely prohibit disturbances to <br />the hydrologic balance and to water quality. Rather, it prohibits the failure to <br />minimize the disturbance. Since section 34-32-116(7)(g) applies only to <br />"[r]eclamation plans and the implementation thereof," the requirement to <br />minimize the disturbance incorporates standards of reasonableness and <br />practicability, as set forth in the Mined Land Reclamation Act's definition of <br />"reclamation." See Colo. Rev. Stat. § 34-32-103(13) ("`Reclamation' means <br />the employment during and after a mining operation of procedures reasonably <br />designed to minimize as much as practicable the disruption from the mining <br />operation ....") (emphasis added). <br />Cotter has been working diligently to implement all of its reclamation <br />requirements. These activities have included extensive investigations which <br />are described in various documents, including more recently a Revised <br />Schwartzwalder Mine Surface Hydrology Study for Cotter Corporation by <br />Shephard Miller Inc. on November 19, 1999; a Schwartzwalder Mine <br />Hydrologic Evaluation, prepared for Cotter Corporation by Adrian Brown <br />Consultants in 2000; a Schwartzwalder Mine Hydrologic Evaluation of Mine <br />#1478373 0 den