2011-07-26_REVISION - M1984014 - Laserfiche WebLink

Home Browse Search

"intermittent status" is being used as a tool by Cotter (acceded to by DRMS) to escape the clear requirements in the MLRA for permit termination and full reclamation to occur after 10 years of non- production. This is evident in the first page of the EPP where Cotter asserts without any statutory or regulatory support that "[b]ecause the JD -8 Mine is currently in `intermittent status' rather than `active status', many of the EPP requirements do not apply." This scenario is unacceptable. In this case, the record demonstrates that JD -8 has already been granted the maximum amount of temporary cessation time. In 1987, Cotter first applied for temporary cessation status, and in 1992 sought a 5 -year extension of that status, which expired in 1997. As per the MLRA, the mine permit should have been terminated at that point. See C.R.S. § 34- 32- 103(6)(a)(III)( "in no case shall temporary cessation of production be continued for more than ten years without terminating the operation and fully complying with the reclamation standards of this article. "). Instead, DRMS (at that time the Division of Mining and Geology) allowed Cotter to switch in 1997 to "intermittent status" despite the lack of any production. That status has persisted until today, some additional 14 years beyond the original 10 years of non - production allowed by the MLRA, and already consumed by Cotter at JD -8. In short, the JD -8 permit amendment to provide for any additional non - production (as clearly contemplated by AM -01) is not allowable under any plain reading of the MLRA, and as a result the mine permit must be terminated and full reclamation commenced. Cotter may contend that "intermittent status" is appropriate based on a reading of the MLRB's Hard Rock/Metal Mining Rules at Rule 6.3.3(a), Rule 6.4.4(e), and Rule 1.13.7, each of which provide some support for an "intermittent status" classification. However, each of these Rules expressly rely on C.R.S. § 32- 34- 103(6)(a)(II) as the statutory basis for allowing "intermittent status." That section of the statute refers to operators that wish to "temporarily cease production for one hundred and eighty days or more." However, because this section deals expressly with operations that wish to "temporarily cease production," any operator taking advantage of this section is still subject to the MLRA's unambiguous requirement in that same section of the statute that "In no case shall temporary cessation of production be continued for more than ten years without terminating the operation and fully complying with the reclamation requirements of this article." C.R.S. § 34- 32- 103(6)(a)(III) (emphasis added). Thus, while the concept of "intermittent status" itself may not necessarily run afoul of the MLRA, the use Cotter is making of that designation flies directly in the face of the MLRA's strict 10 -year cessation restriction. In any case, even if JD -8 was eligible for "intermittent status" given its long history on non- production, Cotter has not performed the necessary reporting and activities required to maintain that status. In order to maintain any intermittent status, the MLRB rules (Rule 1.13) specifically require that an operator must report to the Board through the annual report: "(i) the condition of the operation at the time of cessation; (ii) what specific measures have been and will be implemented to comply with reclamation, performance standards and Environmental Protection Plan requirements; and (iii) plans for resumption of mining." Rule 1.13.7(a). In this case, a review of the record demonstrates that for the last several years at least, Cotter has provided a template annual report that contains none of this required information. In this case, at no point in the last several years has Cotter provided in its annual report any description of any plans whatsoever to resume mining, and even through AM -01, Cotter proposes to make compliance with substantive EPP requirements contingent on resumption of mining. See EPP at 50 (Section 10. Construction Schedule)(indicating that implementation of stormwater controls and reconstruction of temporary ore storage pile are "contingent on resumption of active mining status. "). This lack of compliance is unacceptable under the MLRA and Board Rules. 2