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~~ ~ a <br />Mr. Steven G. Renner 2 <br />30 days. In early 1994 your agency forfeited American Shield's <br />performance bond for not eliminating highwalls. <br />In your request for informal review of the April 1993 AFO determination, you <br />maintain that the Fruita Mine qualifies for the exception from the requirement <br />of complete highwall elimination for certain pre-SMCRA underground mining <br />operations which was approved in a 1994 amendment to the Colorado <br />program at Rule 4-14.1(Z-(f-. For operations that qualify under this rule, <br />highwalls need to be eliminated only to "the maximum extent technically <br />possible" using all "reasonably available spoil." You also stated that your <br />agency would request the Colorado Attorney General to review the record to <br />determine whether a suit [alternative enforcement] to compel further <br />highwall elimination was warranted. <br />In our view, your agency reasonably interpreted the complete highwall <br />elimination exception under rule 4-14.1(2-(f) to apply to the Fruita Mine. We <br />take this stance based both on a plain reading of the amendment's language <br />and its purpose as explained in the preamble to the Secretary's approval of <br />that amendment (59 FR 2740-41, January 9, 1994). Whether or not "all <br />reasonably available spoil" has been used is a separate issue. However, <br />resolution of that issue is not necessary to this office's response to your <br />request for informal review of the AFO's 1993 determination. <br />In September 1994 your agency obtained an opinion from the Colorado <br />Attorney General's office addressing the likelihood of successful court action <br />against American Shield to compel further highwall elimination. That opinion <br />recommended that your agency not initiate a court action related to the <br />highwall issue at the Fruita Mine because: <br />DMG's own technical analysis [concluding that any <br />attempt to eliminate the highwall is not feasible and <br />that partial backfilling of the highwall is not justified] <br />would contradict any decision by DMG or the Board <br />to require American Shield to eliminate the Fruita <br />Mine highwall or impose civil penalties or other <br />penalties on American Shield for failure to eliminate <br />the highwall, any court action by DMG attempting to <br />enforce such a decision would be arbitrary and <br />capricious, and unsupported by substantial evidence. <br />It would be reversed and/or remanded for further <br />