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5 1 <br />Mr. Steven G. Renner 2 <br />AFO's Minesite Evaluation Inspection Reports (MEIR) dated March 20, <br />1991, and October 29, 1990 (copies enclosed), thoroughly document the <br />bonding scheme at this minesite and will not be reiterated in this <br />finding. MLRD's response refers to the agreement reached between the <br />permittee and the Colorado Mined Land Reclamation Board (Board), signed <br />June 27, 1990 (Agreement), as an alternative enforcement action. AFO <br />does not believe this Board-ordered Agreement represents an alternative <br />enforcement action. <br />MLRD's response states, "This Board ordered Agreement required that <br />reclamation work be done at the site to reduce liability as abatement <br />for NOV C-90-007, and in lieu of submitting additional bond." AFO <br />believes that Colorado's approved program requires any bond reduction <br />proposed as a result of reclamation work performed to be processed as an <br />application for bond release under Colorado Rule 3.03.1(2) and, <br />furthermore, that the bond release cannot be approved unless the <br />criteria specified in Rule 3.03.1(2) are satisfied and the remaining <br />bond amount meets the minimum levels established in the Rule. (Refer to <br />January 25, 1991, and March 6, 1991, letters from AFO to MLRD regarding <br />Bond adjustment/reduction practices in Colorado, copies enclosed.) <br />AFO agrees with MLRD's response which noted AFO reviewed the proposed <br />bond release (reduction) decision. The October 5, 1990, proposed bond <br />release (reduction) decision was received by AFO on October 12, 1990. <br />AFO's comments and reference to the proposed decision are contained in <br />the above-referenced MEIR dated October 29. 1990. <br />AFO unders[ands the engineering studies required in the Agreement <br />(pg. 5, IV. ENGINEERING STUDIES) have proposed additional backfilling <br />and grading in parts of Pits 4, 5, and 6. The Agreement also states <br />that (pg. 5 and 6, IV. ENGINEERING STUDIES) areas of Pits 5 and 6 do not <br />conform to the approved postmining topography. ABoard-ordered <br />Agreement must be structured and executed in accordance with MLRD's <br />approved program. AFO concludes that the permittee has not successfully <br />completed backfilling and grading in accordance with the approved <br />reclamation plan as required under Rule 3.03.1(2). <br />AFO further concludes that MLRD's October 5, 1990, bond release <br />(reduction) decision was also not in accordance with Rule 3.03.1(2) as <br />the release was approved prior to the successful completion of <br />backfilling and grading activities, and the amount released for <br />backfilling and grading approximated 70 percent of the bond held at the <br />time of the agreement. ($312,376.00 of the $446,680.00 bond was <br />returned to the permittee.) Based on the record available at this time, <br />AFO would find MLRD's response to TDN 91-2-116-4, Violation 1 of 3, to <br />be arbitrary and capricious and, therefore, inappropriate. However, AFO <br />will delay a final finding of inappropriateness for an additional 10 <br />days to allow MLRD to review this issue again following our meeting of <br />April 10, 1991, in Denver wherein problems with MLRD's bond reduction <br />practices were discussed, <br />