2010-07-02_ENFORCEMENT - M1977300 (2)

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116(7)(c) and other violations. In addition, in the Inspection Report attached to the RTB, the Division states on page 2 that "the concentrations of uranium in Ralston Creek are now consistently exceeding the receiving stream standards. This constitutes a potential violation of § 34.32.116(7)(c)(g)(h)(i), C.R.S. and Hardrock Rules 3.1.6 and 3.1.7." Thus, the Division has alleged sufficient facts as to this violation. Moreover, Cotter's own documents again show that it understood that the toxic material to which the Division refers is uranium. In the Technical Memo, Cotter acknowledges on page one that the Division has identified for Cotter that the toxic forming materials on site are (a) radionuclides in the underground mine pool that are derived from the wallrocks of the underground mine and (b) radionuclides in the Ralston Creek alluvium that threaten ground water and Ralston Creek. Technical Memo at p. 1. The Division's identification of the toxic forming material was in the context of discussion of the requirements of the EPP, specifically Rule 6.4.20 which involves protecting all areas that have the potential to be affected by the toxic- forming materials, while at the same time providing protections required under Rules 3.1.6 and 3.1.7. Technical Memo at p. 1. In addition, in the second paragraph of the EPP, Cotter states that the Division determined that the Schwartzwalder mine was a designated mining operation because toxic material had been disturbed. Whetstone Report at p. 1-1. The EPP then states that DRMS has identified "the flooded mine workings and the alluvium/fill" as containing "toxic-forming materials" on the basis of uranium, radium-226 and molybdenum in ground water in the mine pool and in ground water in the alluvium and fill. Whetstone Report at p. 2-l. Section 6 of the EPP is entitled "Designated Chemicals and Materials Handling" and discusses how the EPP will address "procedures for the disposal, decommission, detoxification or stabilization for all . . .toxic[-forming materials]." Whetstone Report at p. 6-1. That section also notes that the alluvium and mine pool have been identified as containing toxic forming materials on the basis of uranium, radium-226 and molybdenum in ground water in the mine pool and in ground water in the alluvium and fill. Id.3 Thus, Cotter is well aware of the facts underlying the Division's RTB concerning section 116(7)(c). Cotter's assertions to the contrary fail. III. Cotter has failed to protect areas outside of the affected area from damage occurring during the mining operation and reclamation in violation of § 34-32-116(7)(h), C.R.S.. As noted above Cotter acknowledges the impacts to Ralston Creek. Cotter asserts, however, that it has not violated section 116(7)(h) because the term "'damage" s Please note that despite Cotter's claims, the Division is still investigating whether acid forming material or acid mine drainage exists at the mine site. 7