2020-11-17_INSPECTION - C1980007

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October 23, 2020 C-1980-007/West Elk Mine LDS ENFORCEMENT ACTIONS/COMPLIANCE Infraction Number: CO2020001 Inspection Date: June 10, 2020 Date Issued: June 18, 2020 Primary Topic: Right of Entry Secondary Topic: other Tertiary Topic: Description: On April 24, 2020 the United States Court of Appeals for the Tenth Circuit issued a mandate ordering the United States District Court for the District of Colorado to vacate the North Fork Exception to the Colorado Roadless Rule. On June 15, 2020 the United States District Court for the District of Colorado entered an order vacating the North Fork Exception to the Colorado Roadless Rule, 81 Fed. Reg. 91,811 (Dec. 19, 2016). Notwithstanding BLM coal leases C-1362 and COC-67232, after reviewing the relevant facts and Orders from the loth Circuit and the United State District Court, the Division has determined that Mountain Coal has failed to maintain its legal right to enter the Sunset Roadless area at the West Elk Mine. Mountain Coal must immediately cease all surface disturbing activities in longwall panels LWSS-I, LWSS-2, LWSS-3, and LWSS-4 at the West Elk Mine. If Mountain Coal is currently conducting any surface disturbing activities, it must immediately stop and stabilize the area(s) to prevent any off -site impacts pursuant to the Colorado Surface Coal Mining Reclamation Act. The Division further determines that a condition of significant imminent environmental harm exists. Abatement #: 1 Abatement Due Date: 9/14/2020 Abatement Due Extended Date: Abatement Date: 9/14/2020 Abatement Description: Notwithstanding BLM leases C-1362 and COC-67232, Mountain Coal must provide the Division with detailed information regarding its assertion that it maintains legal right of entry to the Sunset Roadless area and why it is not in direct conflict with the District Court order vacating the North Fork Exception to the Colorado Roadless Rule. On August 25, 2020 Mountain Coal Company provided the requested abatement documentation from the US Forest Service and the Bureau of Land Management. The letters from USFS and BLM, the Federal land management agencies, provided clarity regarding their interpretation of the Colorado Roadless Rule and associated rights under the Federal leases related to work associated with panel SS2. Specifically, the letters clarified Mountain Coal's right of entry to access and use the existing road in longwall panel SS2, which was constructed prior to the Federal District Court's vacatur of the North Fork Exception; right of entry to access the two drill pads constructed prior to the vacatur of the North Fork Exception; right of entry to construct two additional drill pads in the Sunset Roadless area for longwall panel SS2; and right of entry to drill mine ventilation boreholes on the drill pads constructed for longwall panel SS2. The letter from USFS provided its determination that the activities outlined herein are consistent with exceptions to the Colorado Roadless Rule, 36 C.F.R. § 294.42(c)(5). The letter from USFS further stated that construction of roads in the Sunset Roadless area for longwall panels SS3 and SS4 is not allowed because of the vacatur of the North Fork Exception. Cessation Order CO-2020-001 was modified on September 17, 2020 as follows: Mountain Coal Company (MCC) is permitted access and use of the existing, temporary road constructed in the Sunset Roadless area for longwall panel SS2 prior to the vacatur of the North Fork Exception, and authorized under PR-15. MCC is permitted to access the two drill pads that were constructed in the Sunset Roadless area for longwall panel SS2 prior to the vacatur of the North Fork Exception. MCC is permitted to Number of Partial Inspection this Fiscal Year: 5 Number of Complete Inspections this Fiscal Year: 1 Page 4 of 24