2014-04-30_GENERAL DOCUMENTS - C1981014 (3)

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6/1612014 State.co.us Ewecutive Branch Mail - Fwd: letter to Dave Berry and copied to other staff- Corley's e-mail of 3/19/12. In the DRMS inspection report for the 4/17/12 inspection, the Division documented that the "reason for the [4/17/12] inspection is in response to a citizen request under Rule 5.02.5 regarding possible damage or dysfunction of ground water monitoring well MW -NW, which is part of the currently approved ground water monitoring program under the Southfield permit #C -81- 014 ". • The Division issued NOV CV2013002 on 1/28/13 following its 1/23/13 inspection of the MW -NW well in which a borehole camera was used and found what appeared to be an obstruction in the well near the bottom of the well (a borehole camera was used also during the Division's 5/15/12 and 9/17/12 inspections). Rule 5.03.5 (1)(a) states "An operator or person issued any notice of violation or cessation order, or any person having an interest which is or may be adversely affected by such notice or order or by any modification, vacation, or termination of such notice or order may request review thereof by the Board within 90 days after the issuance of the notice or order or within 90 days after its modification, vacation, or termination ". The Coal Act at 34- 33- 124(1)(a) similarly states "An operator issued any notice of violation or cessation order pursuant to the provisions of section 34 -33 -123 or any person having an interest which is or may be adversely affected by such notice or order or by any modification, vacation, or termination of such notice or order may request review thereof by the board within ninety days after the issuance of the notice or order or within ninety days after is modification, vacation, or termination. Such request for review may include a request for a hearing to enable the operator or such person to present information relating to the issuance and continuance of such notice or order or the modification, vacation, or termination thereof'. • Whether K2T is able to intervene in the NOV and request a hearing before the MLRB would seem to rely upon a determination of first whether (a) K2T is a "person having an interest which is or may be adversely affected by such notice or order or by any modification, vacation, or termination of such notice or order" and secondly, if so, whether (b) the 90 -day time period within which such a request for Board review may be submitted had passed by the time the request for a hearing was submitted. • Regarding (a) above, a case could be made that a property owner upon whose land a monitoring well was located for the purposes of obtaining water quantity and water quality data in order to document impacts to the hydrologic balance might be adversely affected if an NOV that was written to a company for having failed to maintain that monitoring well in good working condition was vacated or otherwise modified before the Division could conclude that being provided that data was no longer necessary for the Division's purposes under the Coal Act or the Board's Rules. Such a vacation or modification has not occurred. NOV CV2013002 was last modified on 3/25/14 by Dave Berry. The modification did not stop the ability of the Division from being provided the water quality and water quantity data that monitoring well MW -NW was approved to obtain. Rather, the modification simply stated, "or provide information confirming that the well is currently functional for the intended purpose ". As such, it appears that K2T LLC has not been adversely affected by the Division's 3/25/14 modification of NOV CV2013002 in so far as EFCI is still required to monitor MW -NW and is still required to provide to DRMS whatever water quantity and water quality data that well may produce. If it is agreed that K2T LLC has not been adversly affected by the Division's 3/25/14 modification, then it would seem that K2T LLC does not have the right to request a Board Hearing regarding the Division's modification. • Regarding (b) above, NOV CV2013002 was last modified by Dave Berry on 3/25/14. A request for a Board hearing was filed by K2T LLC in an e -mail dated 4/3/14 from Linda Saunders to Rob Zuber. Rob in turn forwarded the e-mail to Dave Berry on 4/7/14. Assuming for a brief moment (and contrary to my comments immediately above) that K2T LLC has in fact been adversely affected by the 3/25/14 NOV modification and thus has a right to request a Board Hearing regarding the modification of the NOV, it would appear that said request was filed by K2T LLC in a timely manner. (4) Additional comments • In order to respond to the 3/25/14 modification to the NOV, EFCI has planned to allow water to flow from https:Hniail.g oog le.corr✓ mail /u/0/ ?ui =2 &i k= b46bel 1 b9e&\Aev,=pt &search= i nbox&th= 145b4l2884950l e6&si m1= 145b4l28849501 e6 3!7