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<br /> <br /> <br />on language noted in 2 CCR 407-2 Rule 4.06.2(2)(a). DMG also made an <br />additional comment regarding the conditions of the site following our joint <br />inspection. They found in the area of construction that topsoil was limited because <br />the diversion was built mostly on steep rocky slopes with asoecis that are normally <br />associated with peer sail ue~elopment. <br />The finding and approval by DMG for the waiver to salvage topsoil in the area <br />where the diversion ditch is located is based on Rule 4.06.1. Subsections (1) and <br />(2) of that regulation give the regulatory authority the right to grant that approval, <br />in "' ' 'areas where light traffic does not destroy existing vegetation or cause <br />erosion, and secondly, where needless damage to soil characteristics would occur <br />by disturbance." AFO contends that DMG made the finding based on the belief <br />that the additional disturbance for topsoil salvage from the ditch construction would <br />needlessly affect additional area and destroy vegetation. "Destroying existing <br />vegetation" is tied to the determination that the disturbance, in doing so, would be <br />minor. It does not mean that topsoil should only be saved it topsoil removal will <br />not destroy vegetation. In addition, the construction of three miles of diversion <br />ditch is not minor in nature. "Needless damage to adjoining soils" is to include the <br />finding that the salvage would be minor in nature. As to the comment by DMG <br />regarding the rocky outcrop and aspect location, AFO does not contest that soil is <br />lacking in some areas of the construction; however, AFO would point cut that the <br />regulations require salvage of an approved subsoil substitute in the absence of <br />topsoil. The failure to salvage topsoil and/or an approved substitute in this matter, <br />is a violation of performance staridards in- ccain- ordance wwith ilie requirements of <br />Colorado's program, and constitutes an arbitrary and capricious response. <br />Therefore, OSM finds DMG's response to violation 1 of 2 to be inappropriate. <br />The TDN cites 2 CCR 407-2 Rule 4.08.5(7) as the regulation believed to have <br />been violated for violation 2 of 2. The TDN states that the operator failed to <br />provide a record of each blasting sketch of the blast pattern, including the number <br />of holes, burden, spacing and delay pattern for one year prior to the oversight <br />inspection. <br />DMG's response indicates that Notice of Violation (NOV) C-92-030 has been <br />issued for the operator's failure to provide a sketch of the blast. The abatement <br />required by the NOV calls for an explanation to be added to the records of the past <br />year and to all future records. The symbols and data on the record will convey as <br />much information as would be provided by a hand-drawn sketch. <br />According to our inspector, Gary Fritz, symbols and data were available for each of <br />the blasts that occurred during the year prior to the inspection. The data included <br />"typical blast patterns" in the approved mine plan. Symbols were recorded on the <br />form for variations from the typical pattern. After some discussion with company <br />officials, it was noted that the symbols were to represent minor changes in the <br />,r <br />1~S .'~ <br />~,,~ n~° ? <br />~,-~~ , <br />