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Cheryl Linden, Esq. <br />June 21, 2010 <br />Page 6 <br />Report attached to the Reason to Believe Letter also reports that <br />"erosion/sedimentation" was "[i]nspected and [fJound in [c]ompliance." No <br />basis therefore exists to find a violation of section 34-32-116(7)(i). <br />DRMS has also alleged a failure to comply with Rules 3.1.6, General <br />Requirements for Water, and 3.1.7, Specific Requirements for Groundwater, <br />but has failed to identify the specific provisions alleged to be violated, unlike <br />the statutory provisions. These assertions cannot, therefore, support any <br />assessment of penalties against Cotter on grounds of vagueness, lack of notice, <br />and lack of due process. Despite this vagueness and lack of notice, DRMS has <br />not shown a violation of these rules. <br />The DRMS has not met its burden of proof that Cotter has violated any of the <br />three subparts of that regulation to the extent they apply to the Schwartzwalder <br />Mine. Subpart one implements Colo. Rev. Stat. § 34-32-116(7)(g) addressing <br />minimizing disturbance to the hydrological balance and to the quality and <br />quantity of water in surface and groundwater systems. As explained above, <br />Cotter has been working closely with DRMS in developing an Environmental <br />Protection Plan, has been implementing reclamation over many years, and had <br />planned additional reclamation in its April 19, 2010 EPP before the Reason to <br />Believe Letter was sent. All of these actions were designed to minimize <br />disturbance to the quality of water in surface and groundwater systems. <br />Subpart two applies to "[e]arth dams, if necessary to impound water," and <br />therefore does not apply here. Subpart three implements Colo. Rev. Stat. <br />§ 34-32-116(7)(i) addressing erosion. As explained above, DRMS has made no <br />factual allegations regarding erosion and the DRMS Inspection Report found <br />that Cotter was in compliance on this issue. <br />Nor has DRMS met its burden of proof that Cotter has violated the Specific <br />Requirements for Groundwater. Section 3.1.7 applies exclusively to the <br />protection of groundwater. However, the Inspection Report attached to the <br />Reason to Believe Letter bases any "potential violation" of this section on <br />alleged exceedances of stream standards with no mention of groundwater. See <br />Inspection Report at 3 ("The concentrations of uranium in Ralston Creek are <br />now consistently exceeding the receiving stream standards. This constitutes a <br />41478373 0 den