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III IIIIIIIIIIIIIIII 999 SLURCO CORPORATION P. O. Box 281304 LAKEWOOD, COLORADO 80228-9304 September 4, 1991 Telephone: 303.980.9340 Mr. Steve Renner Director Mined Land Reclamation Division ~~//~~~~,T,~ 215 Centennial Building ~,p II~Y 1313 Sherman Street Denver, CO 80203-2273 SEP ~ 6 1gg~ RE Appeal to Phase II Decision -Can ian Strip Mine (Permit C-81-02~ M~nea Lana Dear Mr. Renner, ReQ~amation pivisfon In accordance with Rule 3.03.2(6), Slurco Corporation hereby submits a request for an adjudicatory hearing to appeal the above referenced decision dated August 1, 1991. The reason for our appeal is based primarily on the use of statistical revegetative guidelines to determine erosion control success criteria for Phase 11 release. In addition, we object to the reversal of the previous decision which was made in October 1990 and the time frame in which this chain of events has occurred. It is our goal to have the previous decision reinstated and to seek clarification of the Phase II release requirements so subsequent release applications do no[ encounter similar delays and confusion. Several points which we would like to offer for consideration include the following: 1. Rule 3.03.1(3)(b) states that "No more than sixty (60) percent of the bond shall be released so long as the lands to which the release would be applicable are contributing suspended solids to stream0ow or runoff outside the permit area in excess of premining levels as determined by baseline data or in excess of levels determined on adjacent nonmined areas". This demonstration was successful using the SedCad modeling program which uses revegetation cover data. It is our opinion [ha[ this should be the only statistical use of cover data for the Phase II analysis. 2. Rule 3.03.1(2)(b) states that "Up to eighty-five percent of the applicable bond amount shall be released upon the successful establishment of revegetation in accordance with the approved reclamation plan". This Rule does not specify any statistical criteria, only the successful establishment of rcvegetation which has bxn achieved at this site. Thus, a qualitative analysis of rvegctaticn would be appropriate since the statistical analyses of all vegetation parameters is required during years 9 and 10 of the Phase III release period. 3. The Division issued Bond Release on Permanent Proeram Areas guidelines in 1986. [n section IIi.A.2, the standard of "cover of the revegetated area is at least 90% of [he wver from the reference area or other standard with 90% statistical confidence". This guideline wntinues with "Species composition will be evaluated using the species cover to determine whether a diverse and permanent vegetative cover of the same seasonal variety native to the area, as approved in the reclamation plan, is becoming established " The key phrase is "is becoming established", which indicates that the Phase III cover and diversity standard should not be applied to Phase [I release. This guideline goes on to say that "Annual species and noxious weed cover will not count toward the standard." Statistical analyses cannot be conducted if a portion of the vegetative cover is not utilized. Also, these are guidelines which are subject to some interpretation and are not rules. We feel that the first opinion rendered by the Division was an appropriate interpretation of these guidelines.