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Mr. AI Kline -2- March 15, 1993 Assistant Director, Field Operations OSMRE the inspection nor notice that the Field Office was not satisfied with the NOV issued by the State. On February 18, 1993 we received a FAX transmission which attempted to explain the AFO concerns with the Colorado NOV. This correspondence states that the Colorado rules require four feet of cover be placed on the facilities, and that placement must occur upon completion of each lift. The correspondence goes on to explain that the cover depth requirement can only be changed if the State has found that a lesser depth is more appropriate. The AFO contends that a lesser depth can be approved based upon field trials. However, the Field Office has determined that the refuse piles must be covered with four feet of material regardless of whether the field trials are proceeding or not, thereby rendering the trials meaningless. The AFO highlights other perceived deficiencies in the State NOV; however, each of these concerns was addressed by Colorado through the abatement steps outlined in its violation, or through other enforcement actions issued to Powderhorn. The AFO conducted its inspection and issued a Notice of Violation on February 23, 1993. The Federal NOV cited the same Colorado regulatory provisions included in the State NOV. Abatement of the Federal violation requires reclamation of the waste disposal sites to be completed within sixty days, ignoring the ongoing cover depth field trial. When Colorado issued its violation, we took into consideration the history of the site and the ongoing cover depth study. We determined that there was a lack of appropriate permit documentation regarding the length of the trial, and corrected that deficiency by requiring a permit modification. We also successfully reconciled the two Colorado regulations allowing for the field trial to continue while establishing corrective action time tables. States are in a unique position to pull these components together into the abatement of an enforcement action. This ability forms one of the basic cornerstones of the primacy concept. The Federal abatement ignores the site history and conditions, rejects the efforts of the State and operator to scientifically determine an appropriate cover depth, and ignores the fact that two apparently conflicting regulations can be reconciled in order to achieve contemporaneous, successful and long term reclamation. The violation issued by the AFO is inappropriate for many reasons. The most glaring is the fact that the Field Office has ignored the primacy of the State in administering the Colorado Surface Coal Mining Reclamation Act. Colorado took appropriate action to compel compliance at the site. We believe that this action precludes further interference by the AFO unless we fail to follow through to ensure that the permit is amended as required or unless we fail to ensure that reclamation occurs as required in the amended permit. In order to ensure that these situations do not arise again, Colorado proposes that a dispute resolution mechanism be established. The OSM directives at INE-35 do not address this type of situation. We suggest that this disagreement is not carte blanche to