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United States Department of the Interior OFFICE OF THE SOLICITOR DENVER FIELD OFFICE P.O. BOX 25007 DENVER FE DERAL CENTER (303) 231-5350 DENVER, COLORADO 80225 ~~,-, -•--------. !~~d~s I June 16, 1993 :_':"___.__ -~n~ ~~ ~^i ~ ~ 1993 , ; , MEMORANDUM - TO: Robert H. Hagen, Director Albuquerque Field Office ~ - - - Office of Surface Mining Recla at on a~ rcement FROM: Jon K. Johnson, Attorney Denver Field Office ~~ SUBJECT: Colorado Settlement Agre ents - ex and Fruita Mines Your memo of June 8, 1993, to this office details settlement agreements betweeh the State of Colorado and the operators of the Apex and Fruita Mines. In both cases, the information contained in your memo and attached documents indicates that the mine operators and the State have agreed to allow certain highwalls to be retained at the Apex and Fruita Mines. Colorado regulations require the elimination of all highwalls. Rule 4.14.1(2)(a), Regulations of the Colorado Mined Land Reclamation Board for Coal Mining. However, Colorado has initiated rulemaking procedures to incorporate language similar to that in 30 C.F.R. § 817.106 into Rule 4.14. Apparently, Colorado believes that the proposed revision now operates to permit retention of certain highwalls at the Apex and Fruita Mines and has incorporated language into the settlement agree- ments which, in effect, abandons the current Colorado regulation in favor of the proposed changes. While the two questioned settlement agreements treat the pending rulemaking as covering the situations at the Apex and Fruita Mines, the fact is that the rulemaking has not, as of this date, received OSM approval. Changes to an approved State program "shall not take effect for purposes of a State program until approved as an amendment." 30 C.F.R. § 732.17(g). Colorado must enforce its currently approved program and may not place in effect any amendments to its program until such time as they have received OSM approval; consequently, the settlement agreements are not a proper exercise of Colorado's regulatory obligations under its current program. If Colorado's proposed amendment is approved, further evaluation may be necessary to determine if the actions proposed at the Fruita and Apex Mines fall within the purview of the amended regulation. For now, the Colorado program calls for the FOUTIAlG -~