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Further, OSMRE does not appear to have actually determined that any production <br />increases above the 2007 permitted maximum of 610,000 tons of coal per year were <br />appropriately exempt from being approved through mining plan modification. It is true that an <br />OSMRE Western Regional Office employee apparently indicated in a 2014 e-mail that a mining <br />plan modification would not be needed for the 1.3 million ton per year increase in production at <br />King II. See Exhibit 5, E-mail from Nicole Caveny, OSMRE, to David Berry, Director, <br />Colorado Division of Reclamation Mining and Safety (Sept. 18, 2014). However, this four - <br />sentence e-mail from an employee of OSMRE is problematic. <br />First and foremost, under OSMRE's Directives, only the Regional Director is responsible <br />for determining "whether a new permit or permit revision requires preparation of a mining plan <br />decision document." OSMRE REG 31 § 4(b)(3). If the Regional Director did not determine that <br />a mining plan modification was not required for the permit revision allowing production to <br />increase to 1.3 million tons annually, then OSMRE has not legally made any determination that a <br />mining plan modification was not required and GCC cannot avoid compliance with SMCRA. <br />Secondly, the e-mail from OSMRE suggests that, although the rate of coal mining is <br />changing, "the resource that is to be mined" is not affected, and therefore a mining plan <br />modification was not required. Exhibit 5. This position, however, is not supported and GCC's <br />reliance upon it does not serve to demonstrate that the company is not operating in violation of <br />SMCRA. <br />When the 2007 Mining Plan modification was approved, OSMRE estimated that 6.6 <br />million tons of recoverable coal overall would be mined from federal coal lease COC -62920 over <br />10 years. See Exhibit 2. Yet under Colorado's 2014 permitted production increase, 8-12 million <br />tons of coal would be mined from the lease for 6-9 years. See Exhibit 6, GCC Changes to <br />Operation Plan (2014). Thus, not only would more overall coal be mined than what OSMRE <br />estimated in 2007, but mining would occur for a longer period of time: up to 2023 compared to <br />2017. It is telling that when the BLM offered lease COC -62920 for sale, it was estimated to <br />contain only a little more than seven million tons of coal, not more than eight million tons. <br />Clearly the estimated recoverable reserves have increased for federal lease COC -62920. <br />OSMRE's assertions are finally undermined by the fact that the agency never fully <br />assessed whether production increases at King II required a mining plan modification in <br />accordance with 30 C.F.R. § 746.18. Although a mining plan modification is not required where <br />there is no "change in the amount of coal actually available for mining from the amount <br />estimated," a mining plan modification is required where a change in mining "would affect the <br />conditions of its approval pursuant to Federal law or regulation" or where a change in mining <br />"require[s] the preparation of an environmental impact statement under [NEPA]." 30 C.F.R. <br />§ 746.18(d)(1) and (5). <br />Here, OSMRE appears to have failed to address whether increased production at King II <br />would affect the conditions of its approval or pose environmental impacts such that the need for <br />mining plan modification would be triggered. This oversight is significant. Such a major <br />7 <br />