2016-06-13_GENERAL DOCUMENTS - C1981035

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lease CO -3388 totaling approximately 11.7 million tons of mineable coal reserves. However, because of the underground mining methods used at King II, only 60% of the mineable reserves—approximately 7.6 million tons—are estimated to be recoverable. Of the 7.6 million tons estimated to be recoverable, only 6.6 million tons are located within the area covered by the federal SMCRA permit, CO -0106. Thus, the amount of coal extracted under the federal SMCRA permit has not changed. For these reasons, we have no reason to believe that there is a violation of SMCRA or the federal permit. Your complaint also claims a SMCRA violation occurred because of the mine's violation of the MLA mining plan. Allegations of MLA violations are not properly the subject of a citizen complaint under Section 517(h)(1) of SMCRA, which only applies to persons who may be adversely affected by alleged violations of SMCRA. 30 U.S.C. § 1267(h)(1) ("Any person who is or may be adversely affected by a surface mining operation may notify the Secretary or any representative of the Secretary responsible for conducting the inspection, in writing, of any violation of this Act which he has reason to believe exists at the surface mining site" (emphasis added)); see also 30 U.S.C. § 1292(a)(8). As you are aware, mining plans are not issued under SMCRA but instead are issued under the MLA. See 30 U.S.C. § 207(c). Therefore, they cannot form the basis of a citizen complaint under Section 517(h)(1) of SMCRA or a federal inspection under Section 521(a)(1). To the extent that your citizen complaint is interpreted to allege that a MLA mining plan violation creates a federal SMCRA permit violation, we disagree. The federal SMCRA permit is not conditioned on compliance with the MLA mining plan.l As you correctly note in your citizen complaint, the federal SMCRA permit does require compliance with the permit application package (PAP). As you know, the PAP was submitted prior to issuance of the federal SMCRA permit and contains an anticipated maximum production rate of 610,000 tons per year. The production rate in the PAP was calculated in 2006 by dividing the 7.6 million tons of total coal estimated to be recovered from the one federal and one non-federal coal lease by the estimated life of mine – 12.5 years – which yields a 0.61 million tons/year maximum production rate starting in 2007. Although this production rate was defined as an anticipated maximum rate in the PAP, it is not a limit on production. Besides increased production, you indicate violations of the mining plan occurred related to water and land use issues. As with the increased production allegations, neither of these issues creates a SMCRA violation. In addition, there are factual problems with the information presented. Regarding water use, the information you provided does not indicate that the mine has increased its water depletion above that previously analyzed. In your citizen complaint, you include information about the amount of water being used by the mine and a proposal for developing additional storage of water taken by drying up 44 acres of existing agricultural land for future needs. There is no indication from the information that you provided that this 1 Even if there was such a condition, it is unclear how an increase in production would violate the MLA mining plan. First, there are no production limits in the MLA mining plan that could be violated. Second, while the rate of production has increased, the total amount of federal coal to be mined has not changed from the July 2006 and February 2007 Mining Plan Decision Documents that recommended the Assistant Secretary's approval of the mining plans for Federal Lease COC -62920 under the MLA or the Assistant Secretary's August 9, 2006 and May 21, 2007 approvals. Page 2 of 4