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2. APPARENT VIOLATIONS OF SMCRA <br />At issue is GCC's increase in coal production from federal coal lease COC -62920 and the <br />implications under SMCRA and NEPA. When the lease was originally analyzed under NEPA, a <br />production rate of 300,000 tons per year was presumed by the BLM. When the Secretary <br />approved the 2007 Mining Plan, as well as the federal permit for mining, a maximum production <br />rate of 610,000 tons per year was presumed. Since these approvals, GCC has physically <br />produced nearly one million tons annually and has received permission from the State of <br />Colorado to produce up to 1.3 million tons per year. <br />This increase in actual and permitted production indicates two violations of SMCRA are <br />occurring: 1) GCC is mining coal in a manner inconsistent with the 2007 Mining Plan for the <br />King II mine (and likely its federal permit) and/or without the Secretary's approval of a mining <br />plan modification and 2) OSMRE has failed to properly comply with SMCRA as GCC has <br />increased production at the King II mine. <br />Below, we detail these apparent violations. <br />A. GCC's Violation <br />Under SMCRA regulations, a mining plan is "binding" on any entity conducting mining <br />under the approved plan. 30 C.F.R. § 746.17(b). This requirement is echoed by the 2007 <br />Mining Plan modification for the King II mine, which states, "This mining plan approval shall be <br />binding on any person conducting coal development or mining operations under the approved <br />mining plan[.]" Exhibit 1. <br />In the 2007 Mining Plan modification, the Secretary of the Interior stated that, "[t]he <br />operator shall conduct coal development and mining operations only as described in the <br />complete permit application package, and approved by the Office of Surface Mining <br />Reclamation and Enforcement[.]" Exhibit 1. At the time of the federal permit and 2007 Mining <br />Plan modification, the King II mine was authorized to produce a maximum of 610,000 tons of <br />coal per year. Thus, in mining more than 610,000 tons of coal per year for every year since 2011 <br />and without any further mining plan approvals, GCC has been and continues to operate in <br />violation of SMCRA. <br />It may be argued that any production increases at the King II mine have been approved <br />by the State of Colorado through a permit revision, and therefore are appropriate under SMCRA. <br />However, these production increases were not disclosed as part of the permit application package <br />reviewed by OSMRE when the 2007 Mining Plan modification was approved. Such production <br />increases could not possibly be construed as operating "as described in the complete permit <br />application package" that was considered in 2007. GCC therefore appears to be clearly <br />conducting its operations outside the bounds of the 2007 Mining Plan modification.2 <br />2 It would also appear that GCC is operating outside the bounds of its 2007 federal permit, which similarly requires <br />the company operate to compliance with its permit application package. <br />Z <br />