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Mr. Robert Hagen - 3 - January 29, 1993 In its response to the Division, Af0 refers to the Deputy Director's decision to uphold TDL 91-02-370-003 which was issued by the AFO in a partially analogous but significantly different situation. In that instance, sediment control structures cited in the TDL were constructed with embankments above grade. AFO contends that those structures and the structures at Roadside are sediment ponds. AFO quotes the Deputy Director's response to the appeal of the TDL in which it was stated that "it is not necessary to resolve the question of whether the structures referenced in the TDL are sediment ponds" and, that the structures needed to be classified as impoundments. Colorado's application of the rules in the Roadside/Cameo situation is consistent with the Deputy Director's findings in regard to TDL 91-02-370-003. The regulatory requirements of 4.05.9, temporary impoundments, were met. AFO concludes its response by stating, "The fact that the ponds are excavated does not eliminate the need to comply with the design and certification requirements. The sediment pond regulations clearly require certification...These requirements are found at Colorado Rule 4.05.6(10) and 2.05.3(4)(a,b,and c)." AFO fails to recognize that these structures are not sediment ponds. Further, since the impoundments do not have dams or embankments, the certification requirements for sediment ponds in Rule 4.05.6(10) do not apply to these structures as it pertains to embankments. To further clarify the certification requirement, it is important to note that Colorado rules address certification of ponds and impoundments in three instances. 1. Rule 4.05.6(10) requires certification of sediment ponds. As discussed above, the impoundments at the North Decline are not sediment ponds. 2. Rule 4.05.9(2) states, "Temporary impoundments of water in which the water is impounded by a dam shall meet the requirements of..." This rule does not apply to the North Decline impoundments since they do not impound water behind a dam. 3. Rule 4.05.9(10) states, "All dams and embankments that do not meet the size or other criteria of 4.05.9(3) shall be certified...". This rules does not apply to the impoundments at the North Decline since there are no dams or embankments. Colorado's application of these regulatory requirements appears to be consistent with OSM policy as defined in Directive TSR-2. This directive states, "If an impoundment is constructed without an embankment, OSMRE policy will exempt these impoundments from the quarterly examination requirements since there is no embankment to examine for structural weakness or other hazardous conditions". The regulatory requirements for certifications and quarterly inspections both serve the purpose of ensuring against safety problems due to structural weakness in embankments.