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2 The other two impoundments, ponds 1 and 8, cited in the TDN do not appear to have adequate storage capacity to contain runoff from a 25 year storm event and therefore do not meet the regulatory exemption for spillways. Rather, the designs for these structures include provisions for pumping to remove runoff from a 10 year event, which event can be totally contained in the ponds, and a closed emergenry spillway to safely pass runoff from a 25 year event. These designs were approved by Colorado in 1981 when the Roadside permit was initially approved. At that time, the combination of pumping and a closed spillway complied with Colorado regulations. Impoundment spillway designs were reevaluated in 1991 when Colorado's Rule 4.05.6(3)(d) was revised to include a requirement for separate closed spillways or a combined open channel spillway. These impoundments were apparently overlooked at that time. The result of the history related above is that the currently approved designs for these two impoundments remain in the PAP as they have for the past thirteen years. Colorado agrees that the currently approved designs for these structures do not comply with applicable regulations. However, those designs were approved in the PAP. The operator constructed and maintained the structures in accordance with the approved mine permit. Therefore, Colorado's response to the TDN was to identify this deficienry as a permit defect, and to require correction of the defect in accordance with Colorado's approved program and the procedures in OSM's Directive INE-35. The approved Roadside permit specifically addresses spillway designs for the impoundments in question. The closed channel emergency spillways on the impoundments were specifically designed to safely pass runoff from a 25 yeaz storm event. Thus, the impoundments aze capable of preventing damage from the design event required by regulations, should that event occur. It should also be noted that no on-the-ground harm resulting from this alleged violation was observed during the inspection. Nor is there any record or evidence of either of these impoundments dischazging water since their construction. AFO found this response to be arbitrary and capricious. AFO's arbitrary and capricious finding was apparently based on their conclusion that, "construction of an impoundment and its spillway is an on-the-ground performance standard" which cannot be labeled a permit. defect. This conclusion contradicts O,S~vt polity as discussed in directive INE-35, and OSM's past interpretation and application of that polity. OSM directive INE-35, paragraph 5, defines a permit defect as, "Any procedural or substantive deficienry in apermit-related action taken by the regulatory authority. Examples include..... (d) approval of designs...which are inconsistent with the approved program".