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1<<ilirirl~~ri~~i~i ~nite~ ~tate~s senate WASHINGTON, DC 20510 September 27, 1994 The Honorable Bruce Babbitt Secretary Department of the Interior 1849 C Street, N.W. Washington, D.C. 20240 Dear Mr. Secretary: We are writing to support the recent actions of the State of Colorado regarding Kerr Coal Company•s (Kerr) reclamation project near Walden, Colorado. The situation involving Kerr and the Office of Surface Mining (OSM) has prompted Governor Roy Romer to request that you assume jurisdiction of the situation under 43 C.F.R. Part 4.5 to conduct an independent review of the case and issue a final decision. The Kerr reclamation was completed in accordance with a plan approved by the Colorado Division of Minerals and Geology (DMG) in 1993. The reclamation project won a state reclamation award that was presented to Kerr by OSM Director Bob Uram while on a trip to Colorado (copy attached). OSM claims that 1200 feet of the 1.9 mile mine site does not meet the approximate original contour of the land involved. DMG has certified the reclamation based on the amount of fill material available on a truncated mine life. OSM, in spite of the fact that it was informed of the reclamation progress on a monthly basis from the beginning of reclamation in 1990 and registered no complaints, chose to issue a Notice of Violation following completion of the land reclamation. Another Interior agency, the Bureau of Land Management, has stated that the productivity of the land following the post-mining reclamation is superior to the pre-mining productivity. The legal issue involved is where the primary enforcement authority over reclamation projects lies. Federal law clearly places primary authority with the states unless there is imminent environmental danger. In the Kerr case, OSM, by its own admission concedes there is no danger of imminent environmental harm or risk to public safety. Further, OSM did not comply with Federal law by notifying the State of Colorado ten days in advance of issuing the Notice of Violation.