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_: The AFO incorrectly states that the Regulations require the use of a topsoil substitute should topsoil be unavailable. The Federal Regulations at 816.22 and 817.22 require the use of a substitute material if such material has been approved as a topsoil replacement by the regulatory authority. Due to the abundance of available topsoil material at this mine as a whole, no such approval has been grantees =f she State. The Colorado Regulations essertialiy mirror the Federal requirements, allowing for the use of subsoil or overburden materials if such materials provide a superior plant growth medium. Again, this is unnecessary due to the volume of quality topsoil material available at this mine. The AFO response suggests that Colorado believes it could grant a topsoil salvage variance whenever vegetation would be destroyed during salvage operations. It has been our observation that topsoil salvage necessarily results in the loss of vegetative cover. The Division has required the salvage of thousands of acres of topsoil at mining sites in implementing the program. Clearly, Colorado has never interpreted the regulations to allow topsoil salvage variances solely for the purpose of eliminating the potential for vegetative destruction. As previously noted, the potential damage to adjacent soils due to salvage operations was the determining factor in granting the variance. Regarding the issue of minor disturbance, it is clear that the diversion is constructed in topography which has inhibited soil development. At least 75% of the ditch is constructed on steep slopes which have little if any topsoil available. Therefore, only a minor portion of the ditch, less than 25%, has some amount of salvageable material. It is from these areas that the material is stockpiled and seeded for use in reclamation. The Colorado Division of Minerals and Geology has correctly interpreted its regulations, and appropriately applied them to the permitting of the diversion in question. These rules embody the intent of the Federal Regulations, and very closely mirror the Federal counterpart. Based on the facts contained in the record, Colorado does not believe that a violation of its Rules or of the approved permit exists. Therefore DMG requests that the Deputy Director reverse the determination of the Albuquerque Field Office. Please contact me if you have questions or comments -~- S ince~el_~-~~ Steve Renner Coal Program Supervisor CC: Larry Routten Michael Long c\tdncolwy.wp