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(7) Water Quality Considerations. Inherent in the SWSP are water <br />quality issues. Water quality considerations were made part of the decrees in <br />89CW32 and 99CW057, in part, to provide assurances to administrative <br />agencies, water users, and Costilla County of a number of concerns. Lysimeters <br />were installed below the collection pond in 89CW32 to test for water quality and <br />various testing procedures were mandated at wells and surface locations, in both <br />89CW32 and 99CW57, to test for water quality, down gradient of the mine site. <br />Based upon information and belief, both DRMS and CDPHE are involved <br />with oversight responsibility as to use of West Pit waters. In the event the West <br />Pit waters are contemplated for irrigation use in the TMF, water quantity and <br />water quality considerations should be made in conjunction with all involved <br />regulatory agencies, including DRMS and CDPHE. Absent a showing of <br />approval of DRMS and CDPHE of the use of untreated waters on a canola crop, <br />BMRI is placing the proverbial "cart before the horse? <br />In addition, if West Pit waters are applied to the crops in the TMF, soils <br />testing should be required as part of the use of such waters. Repeated <br />application of West Pit waters may involve a build -up of constituents in the soils. <br />Further, because the plan is experimental in nature, BMRI needs to demonstrate <br />the adequacy of it. <br />Also, the more untreated water that is moved to the TMF, the more water <br />that is subject to the risk of an unintended release that cannot be captured in the <br />recapture zone. Also, the TMF was never intended for use for agricultural <br />production. It was constructed as part of a reclamation plan to facilitate reception <br />of untreated waters for evaporative purposes. <br />Growing canola or other crops in the TMF has attendant health and safety <br />considerations that need to be addressed. The TMF, and the collection pond <br />below it, is an unfenced area and accessible to wildlife. To the extent that wildlife <br />have access to the TMF and could eat a growing crop, appropriate safeguards <br />should be taken to assure that these considerations are addressed. <br />(8) Discovery in 07CW42. Currently, discovery, and requests for <br />information to BMRI, is ongoir(g in 07CW42. As part of that process, Costilla <br />County has requested that BMRI provide its engineering analysis as to the <br />impact of pumping Salazar Ranch wells on the Rito Seco or adjacent streams, <br />including the two irrigation wells supplying the center pivot irrigation systems. <br />Historically, two irrigation wells have been used as a source of supply for two <br />2 DBMS requires in AM -03 that any plan demonstrates that the capacity of the tailings pond is sufficient to contain the <br />rate of flow from the West Pit " DRMS requires that BMRI "demonstrate that any leakage through the geomembrane <br />of the irrigation storage ponds will not escape the capture zone of the West Pit dewatering wells." (DRMS Erickson <br />letter of April 25, 2008, p.6) <br />3 Under the AM -03 plan, BMRI was required "to take into account the safety and protection of wildlife on the mine site <br />and include a description of the effect the proposed operation will have on the existing wildlife in the area." (DRMS <br />Erickson letter of April 25, 2008, p.5-6) This appears not to have occurred to the extent that the ponds in which <br />untreated waters are stored are unfenced and accessible to wildlife. <br />5 <br />