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<br />,Mr. W. Hord Tipton III - 2 - August 24, 1990 <br />In alleged violation 4, the TDN states, "that the operator failed to prevent <br />establishment of noxious weeds on the berm of Pond A." AFO acknowledged that <br />the incorrect regulation was cited for the TDN, and subsequently relied on the <br />Colorado Guideline for Management of Noxious Weeds on Reclaimed Land to <br />support their conclusion that the Division's response was inappropriate. <br />Unlike some states, the Division's guidelines, by statute, do not have the <br />force of law or regulation, therefore the Division could not rely upon such to <br />cite a non-compliance. <br />AFO also states that the operator is also not in compliance with his approved <br />weed management plan contained in the PAP. A copy of that plan is attached. <br />The plan commits the operator only to monitoring of weeds, and not to <br />control. Because the plan is vague an nom n=comnital, the Division has <br />required the operator to modify this weed management plan during a currently <br />ongoing permit revision review. <br />With respect to this alleged violation, the Division does not believe that AFO <br />has shown as required that the Division's response "is inconsistent with the <br />definitions of appropriate action and good cause and that the regulatory <br />authority's response is arbitrary, capricious, or an abuse of discretion under <br />the state program." <br />Your consideration of this request is appreciated. Please contact me if you <br />have any questions. <br />Since ely, <br />~ ~. <br />~- ' <br />f. •. ~ L <br />~- Y. ~~/~ <br />_i <br />Dan T. Mathews. <br />Acting Coal Program Supervisor <br />DTM/yjb <br />Enclosure(s) <br />cc: Mr. Robert Hagen, AFO, OSMRE <br />Bill Crick <br />Michael Savage <br />9696E <br />