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3 Colorado's approval of impoundment designs in the Roadside permit constitutes a substantive deficiency in apermit-related action in which approval of designs which are inconsistent with the approved program occurred. Therefore, Colorado identified this problem as a permit defect and addressed the matter as discussed in INE-35. The operator was given written notice of the need to revise the permit within thirty days, a time period of less than thirty days for approval was identified, and implementation of any required changes will be required consistent with Colorado's approved program. Clearly, the spillway situation at ponds 1, 2, 7, and 8 is a permit defect. In addition, AFO's response says, "As stated in paragraph 5 of OSM Directive INE-35, enforcement action by the State regulatory authority is required", presumably, "Since the construction of an impoundment and its spillway is an on-the-ground performance standard". The portion of INE-35 cited by AFO indicates enforcement action by the State is required to address permit defects resulting from fraud or collusion, or situations where the permit does not specifically address a practice which is governed by a performance standard. Fraud or collusion are not relevant. Therefore, the provision of INE-35, paragraph 5 requiring enforcement action is not applicable in this instance. Second, AFO's assertion that enforcement action is required to address this situation is not consistent with past interpretation and application of INE-35 by the AFO and OSM headquarters. During the past five years, fifteen permit defects have been identified by Colorado as a result of TDN's issued by the AFO. Thirteen of those TDN's cited performance standard violations. In three of these cases, on-the-ground complications had actually occurred. Colorado's identification of permit defects in all fifteen of these instances was found to be an appropriate response by either the AFO or, by OSM headquarters. Colorado disagrees with AFO's finding that the condition cited in the TDN is not a pernut defect because of the above points. In summary, Colorado identified the issue raised in TDN X-94-020-352-006 as a permit defect, and addressed the matter in accordance with the provisions of Colorado's approved program and OSM Directive INE-35. In doing so, Colorado was neither arbitrary or capricious. In fact, Colorado acted in accordance with OSM's policy directives which provide specific guidance regarding the definition and handling of permit defects. Both OSM and Colorado have effectively and appropriately handled such matters as permit defects in the past. We believe that after a careful review of the facts in this matter, OSM headquarters will agree that this is a matter of a permit defect, and reverse the AFO's finding that Colorado has acted in an arbitrary and capricious manner with regard to ponds 1 and 8 at the Roadside Portals mines.