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United States Department of the Interior OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT WASHINGTON, D.C. 20240 JAN & 1993 Mr. Steven G. Renner Coal Program Supervisor . Division of Minerals and Geology Department of Natural Resources 1313 Sherman Street, Room 215 Denver, Colorado 80203 «i iii~llrii~~~~ili, ~= ~~ .~ ~ JAN 1 2 ]993 A91f~FRF,L~~ ~~ ; Dear Mr. Renner: This is in response to your November 30, 1992, letter requesting informal review of the Albuquerque Field Office (AFO) Director's determination that your agency has not taken appropriate action or shown good cause for inaction with respect to ten-day notice (TDN) number 92-02-244-2 (Colowyo Coal Co.). The TDN alleges that the permittee failed to first remove the topsoil before constructing an approximate 4.4 acre diversion ditch within a permit area of approximately 7,000 acres. In your request for review, you point out that Section 4.06.2 of the Colorado program allows variances from the requirement to remove and segregate topsoil, for good cause shown. You explain that the permit application included a request for such a variance applicable to the construction of diversion ditches. The basis for the request was a lack of topsoil on steep slopes and the potential for damage to adjacent topsoil resources if the topsoil had to be removed and stockpiled. You further explain that your agency granted the request based on a finding that little, if any, topsoil was available for salvage in this steep terrain and, due to the remoteness of many portions of the diversion, needless damage to intervening soil resources would result by hauling the topsoil cross-country to a storage area. Finally, you note that only a minor (less than 25 percent) portion of the ditch site had some salvageable topsoil material which has been placed adjacent to the ditch and seeded and if this material is insufficient it will be supplemented from an abundance of topsoil available elsewhere on the permit area. At issue is whether the general variance for topsoil removal approved by your agency in the permit appropriately extends to the diversion ditch in question. In the request for a variance in the approved permit application, the permittee made a reasonable argument stating in part that "In most cases, especially on steep slopes, removal of topsoil prior to ditch construction needlessly damages large areas of topsoil, along with the adjacent natural vegetation. Implementation of the technique of cutting the ditches directly into the hillside