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Ms. Susan J. McCannon <br />2 <br />As you note in your letter, while not completely in compliance with Colorado <br />spillway rules, the closed channel emergency spillways on pond Nos. 1 and <br />8 are designed to safely pass runoff from a 25-year storm event and thus <br />the ponds are capable of preventing damage from the design event required <br />by the Colorado rules should that event ever occur. You also note and the <br />AFO does not seem to disagree, that there has been no on-the-ground harm <br />or a violation of the effluent limit performance standards observed during the <br />inspection of pond Nos. 1 or 8 nor is there any record or evidence of either <br />of these impoundments discharging water since their construction. <br />We find that in requiring Powderhorn to revise its permit and reconstruct <br />pond Nos. 1 and 8, DMG's response to the TDN constitutes "appropriate <br />action" and accordingly, we reverse the determination of the AFO Director. <br />The definition of "appropriate action" at 30 CFR 842.1 1(b-(1-(ii)(B-(3) <br />includes "other action" authorized under the State program to cause the <br />violation to be corrected. Therefore, in this case "other action" can be the <br />initiation of the required permit revision under the State counterpart to 30 <br />CFR 774.1 1(b) which could lead to the redesign and reconstruction of the <br />ponds to be completed within a reasonable time. 53 FR 26734 (July 14, <br />19881. <br />Sincerely, <br />it/ Y~/~ <br />Ed Kay 'l <br />Deputy Director <br />cc: Powderhorn Coal Co. <br />c/o Larry Reschke <br />P.O. Box 1430 <br />Palisade, CO 81526 <br />Acting Director, Albuquerque Field Office <br />Acting Regional Director, Mid-Continent Coordinating Center <br />Acting Assistant Director, Eastern Support Center <br />Acting Assistant Director, Western Support Center <br />Assistant Director, Field Operations <br />Assistant Solicitor, Regulatory Programs <br />