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Berry, David <br />From: James Fulton [JFulton@osmre.gov] <br />Sent: Wednesday, January 31, 2007 11:27 AM <br />To: James Fulton <br />Cc: Berry, David <br />Spam: 0 <br />TO: Ann Tatum <br />FROM: Jim Fulton <br />As I stated on the phone this morning, I do not believe OSM has authority to take direct action against Basin <br />without first providing opportunity to Colorado under 30 CFR 843.12(a)(2). On the basis of your letter to AI Klein <br />and me dated January 26, 2007, I have reason to believe there is a violation of the State program. Specifically, I <br />have reason to believe there is a violation of State regulation 4.20.3(b), requiring repair or compensation. 30 CFR <br />843.12(a)(2) requires that we give a written report of the violation to the State and to the permittee so that <br />appropriate action can be taken by the State. If the State fails within ten days after notification to take appropriate <br />action to cause the violation to be corrected, or to show good cause for such failure, and if the violation continues <br />to exist, then OSM can issue an NOV. <br />You cited 30 CFR 843.25 as giving OSM direct enforcement authority for the violation you described in your <br />January 26 letter. 843.25 established that by July 31, 1995, OSM would publish determinations for each State as <br />to who would be responsible for enforcement of 817.121(c)(2), and (c)(4). [(c)(4) was since suspended.] OSM <br />published its decision in the Federal Register July 27, 1995, (60 FR 38491) that enforcement of the subsidence <br />provisions would occur through State enforcement. <br />In noway does 843.25 give OSM authority to take direct action against Basin in response to your complaint. Note <br />that 30 CFR 843.25 did not apply to 817.121(c)(5), pertaining to increasing bond. <br />During our meeting January 30, Dave Berry stated he doubts that Colorado has authority under existing bonding <br />requirements to increase bond as envisioned by 817.121(c)(5). OSM will require Colorado to adopt a provision <br />consistent with 817.121(c)(5). <br />2/2/2007 <br />