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made clear that the 2012 and 2015 inspection reports represent only the position of the individual inspector and <br />not the CDPHE or APCD. Until the APCD as an agency determines whether these emissions constitute a violation <br />of an applicable state and federal air quality law, I do not have reason to believe that SMCRA or a permit <br />condition is being violated even if VOCs are being emitted. As of October 30, 2017, the APCD has not made such <br />a determination. See October 30, 2017 DRMS Response to WEG's Complaint and Request for Inspection Over <br />Failure of West Elk Mine, Permit Number C-1980-007, to Comply with Applicable State and Federal Coal Mining <br />Laws and Regulations (the Air Pollution Control Division "has not made any determination that the West Elk <br />Mine has exceeded State and Federal air quality standards for VOC emissions ...."). <br />In your Request for Informal Review, you also cite to an article from Bloomberg Environment in support of your <br />proposition that CDPHE's Director of Environmental Programs does not deny the emissions, but you also <br />concede there are "issues" around "quantifying emissions." Request for Informal Review at pp.6-7 and Exhibit 5. <br />Like CDPHE's Director of Environmental Programs, I do not deny the existence of the emissions; however, the <br />"issues" mentioned go to the heart of the matter: "Do the emissions constitute a violation of an applicable state <br />and federal air quality law?" On that point, the evidence we have is that the agency with the authority to make <br />that determination—CDPHE APCD—has not determined any applicable air quality standards have been violated <br />because it is unclear whether the emissions at West Elk Mine are covered by the applicable air quality standard <br />you assert was violated. See January 11, 2017 letter from CDPHE to MCC.. <br />In the Request for Informal Review, you note that WEG's Complaint does not ask OSMRE to assert "authority to <br />implement the Clean Air Act or to regulate air emissions that are not properly within the agency's regulatory <br />jurisdiction." Request for Informal Review at p. 8. Yet, you suggest that we do our own testing, discuss the <br />matter with APCD inspectors, and request emissions data from MCC. To "[a]t the least.... confirm for itself <br />whether emissions of VOCs are exceeding State/or Federal air quality reporting and permitting thresholds." !d. <br />at 10-11. In order to confirm for ourselves, we would be required to resolve the dispute over the state or federal <br />air quality standards that should apply here. Under 30 U.S.C. § 1292(a)(4), we are prohibited from undertaking <br />such an analysis. Otherwise, our determination about whether certain emissions violate the Clean Air Act <br />standards could be considered as superseding the Clean Air Act authority's own decision about whether the <br />Clean Air Act has been violated. Therefore, until and unless CDPHE APCD determines that the VOCs emissions <br />constitute a violation of federal or state clean air laws and regulations, there is nothing we could find in the <br />course of a federal inspection that would lead us to identify a violation of SMCRA or a permit condition. <br />For these reasons, I agree with the DFB's conclusion that OSMRE does not have a reason to believe that there is <br />a violation of SMCRA, the regulations, or a permit condition. That being the case, I have no authority to issue a <br />TDN or order a federal inspection. <br />If you do not agree with this decision, you have the right under 43 C.F.R. §§ 4.1280 et seq. to appeal to the Office <br />of Hearings and Appeals. If you wish to appeal this decision, your written notice of appeal must be filed within <br />20 days from receipt of this decision at the following address: <br />U.S. Department of the Interior <br />Office of Surface Mining Reclamation and Enforcement <br />Attn: David Berry, Regional Director <br />8 <br />