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y Mr. Dan Matthews 2 In violation 2 of 3, the TDN cites Colorado regulation 2 CCR 407-2, Section 4.06.3(2), as the regulation believed to have been violated. The TDN states that the operator failed to protect stockpiled topsoil from wind and water erosion by establishing temporary cover or other methods approved by the Regulatory Authority for topsoil piles Nos. 8 and 13. MLRD responded to this part of the TDN by issuing NOV No. C-90-035 for drainage control off of the stockpiles as well as including a cover requirement for them. MLRD's issuance of the enforcement action is appropriate for violation 2 of 3. In violation 3 of 3, the TDN cites Colorado regulation 2 CCR 407-2, Section 4.03.2(4)(e)(iii), as the regulation believed to have been violated. The TDN states that the operator failed to prevent erosion at a culvert outlet dropping into pond 005. MI.RD responded to the violation by indicating that the culvert, C-21, has been properly installed. Part of the installation requirements for this culvert according to the approved mine plan is a filter blanket apron and riprap below the outlet. In addition, instead of being an access road according to the OSM MEISER report, it is part of the drainage control system for a haul road. Erosion below the outlet, which is a part of Che pond inlet system for the 005 sediment pond, is a permitting defect. The operator has indicated that inlet armoring, in this instance, is required according to the mine plan to a level corresponding with the tap of the primary spillway in the pond. MLRD has required the permittee to revise that part of the plan to include stabilization of the inlets down to a stable elevation as determined by typical water levels in the ponds. OSM concurs with MI.RD's comment regarding the status of the road, instead of an access road; further mine plan review reveals that it is indeed a haul road. The maintenance requirements for both types of culvert installations, whether they be for access or haulage, remain the same. Secondly, mine plan requirements may have been met as far as the installation of the blanket and riprap, but that does not preclude maintenance. Erosion was noted below the structure as well as underneath of it. Damage was extensive. Because the integrity of the combined erosion control measures were threatened, a prudent operator should have noted the damage and repaired it, as well as modifying the structure to ensure like events would not reoccur. This is a performance violation as opposed to a permitting defect as your office has indicated. MLRD's failure to address the violation in accordance with the requirements of Colorado's program constitutes an arbitrary and capricious response. Therefore, OSM finds MIRD's response to violation 3 of 3 of the TDN to be inappropriate.