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,, <br />~. <br />Mr. Michael B. Long <br />2 <br />Furthermore, Colorado's position would be unacceptable even under the program <br />amendment noted above, for a demonstration has not been made that the volume <br />of reasonably available spoil is insufficient to completely backfill the highwall. The <br />Office of Surface Mining Reclamation and Enforcement's (OSM) analysis of the <br />proposed State program amendment concluded that the proposed rule <br />acknowledged that the operator is obligated to backfill to completely eliminate a <br />highwall, and the backfilled slope must attain a safety factor of 1.3. Only if the <br />volume of reasonably available spoil is unable to accomplish both requirements is <br />the exception contemplated. The rationale for OSM's conclusion can be found in <br />the Federal rule for backfilling and grading previously mined areas (30 CFR <br />816.106) that served as the authoritative basis for approval of Colorado's <br />exemption. It is clear that the previously mined exemption was intended to only <br />apply to areas where the volume of reasonably available spoil material is <br />insufficient to completely backfill the highwall. <br />Colorado's interpretation of its program goes beyond an extension of the <br />exemption for previously mined areas and beyond OSM's understanding of the <br />amendment when it was approved. Colorado must find that the volume of spoil <br />material available is not sufficient to completely backfill the highwall before the <br />criteria for demonstrating that the highwall will be reclaimed to the maximum extent <br />technically practical can be applied. Stability is one of these criteria. <br />In addition, a further reading of the Final Rule preamble indicates that if the <br />highwall cannot be completely reclaimed, then it must be reclaimed to the <br />maximum extent technically practical. This demonstration was not included in your <br />submittal. I would also like to remind you that it is the operator who is supposed to <br />make these demonstrations not the State Regulatory Authority. <br />AFO disagrees with the State finding that "it is not reasonable nor environmentally <br />desirable to redisturb it and risk additional fugitive dust and sediment yield." The <br />available spoil was placed in the present location as authorized by the interim <br />permit for the purpose of reclaiming the highwall. Any adverse effects from <br />redisturbing this material would be minor and short-term and would be more than <br />offset by the value of reclaiming the highwall. <br />AFO is concluding that application of the exemption for continuously mined areas <br />would be unlawful, and even if the program amendment were to apply, Colorado's <br />position would be unlawful. i <br />I am hereby making a second and new finding of an inappropriate State response <br />to TDN 91-02-116-05. The issue in this case derives from that TDN dated July 2, <br />1991, alleging that Colorado did not properly reclaim the highwall at the Fruita <br />Mine. AFO's finding of an inappropriate State response was affirmed by the <br />Deputy Director of OSM on August 6, 1991. The State issued a Notice of Violation <br />(NOV) on September 24, 1991, prior to AFO's reinspection of the site. On <br />