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appeal in this action. Though mediation was unsuccessful, a dialogue will continue in an effort <br />to achieve a settlement. <br />3. on August 1, 2011 the United States Office of Surface Mining ( "OSM "), acting in its <br />oversight capacity pursuant to provisions of the federal Surface Mining Control and Reclamation <br />Act, issued a letter to Defendant Colorado Division of Reclamation, Mining, and Safety <br />( "DRMS ") with respect to its investigation of permitting in PR -6 and the general permitting for <br />the New Horizon Mine. The OSM review focused specifically on the adequacy of permitting in <br />PR -6 and the effect on prime farmland reclamation on the lands owned by Plaintiffs. A copy of <br />the OSM letter and supporting Technical Compliance Study is attached as Exhibit A. In <br />summary, OSM stated: <br />"OSM's technical evaluation of Permit C- 008 -81 identified several areas within the <br />approved permit where soils and overburden data are insufficient to reasonably <br />conclude that the prime farmland reclamation plans therein have been prepared to be <br />in accordance with the state program performance standards. Based on these concerns <br />a field investigation is necessary to complete the continuing regulatory investigation <br />of the citizens' complaint allegations contained in the outstanding TDNs. To evaluate <br />the severity of the technical concerns, additional soils sampling must be conducted, <br />along with subsequent appropriate analysis, to determine if an adequate volume of <br />suitable soil material exists and can be handled in a practical manner to complete <br />reclamation of the prime farmlands as required under Colorado regulations."' Letter <br />from Kenneth Walker, OSM, August 1, 2011, p. 1. <br />In correspondent to Defendant Western Fuels Colorado, LLC, dated August 8, 2011 DRMS <br />states: <br />In concert with the above required soil materials sampling effort, the Division, OSM, <br />and the NRCS State office will also be evaluating the prime farmland reclamation <br />plans, the soil suitability criteria, the soil sampling plans, and the prime farmland <br />yield standard included within the permit. Based on the results of the soils sampling <br />and data analysis technical revision, further revisions to the permit may be warranted <br />for the prime farmland reclamation plan. Letter from David A. Berry, DRMS, <br />August 8, 2011, p.2 (emphasis added), Attached as Exhibit B. <br />4. Subsequent communications between undersigned counsel and counsel for Defendant <br />DRMS indicate that the agency does not intend to dispute the findings by OSM, and that it plans <br />to implement further investigations in conjunction with OSM. Counsel for Defendant Western <br />Fuels indicates that his client intends to engage in the testing and evaluations requested by <br />OSM/DRMS. Undersigned counsel was unable to reach counsel for Defendant Colorado Mined <br />1 OSM found several defects in PR -6 based upon submitted data not supporting requirements in applicable <br />regulations. These defects pertained to: a) restoration of agricultural yields; b) soil salvage standards; c) prevention <br />of soil degradation; and d) suitability of subsoil replacement. <br />