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Mr. Al Klein -2- June 9, 1994 Deputy Director, Field Operations danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant imminent environmental harm to land, air or water resources. Mr. Rathbun has stated to Division and Kerr Coal Company personnel that he did not believe that imminent harm or danger existed at the site. Apparently because these conditions did not exist, a Cessation Order was not warranted or issued. Part 843.12 (a) (1) describes those circumstances in which the OSM may issue a Notice of Violation. These circumstances are limited to Federal inspections "...carried out during enforcement of a Federal program or Federal lands program or during enforcement of a State program..." None of these circumstances, as defined in SMCRA, exist in Colorado; therefore, no authority to issue a citation under this portion of Part 843 exists. Part 843.12 (2) states that when a violation of the Act, State Program or permit condition is observed during the course of an inspection other than that discussed in 843.12 (a) (1) (ie: oversight, bond release or other joint inspections), and that such violation does not create an imminent danger or harm, the Federal ir-spector must give a written report of We violation to the State so that appropriate action can be taken by the State. The written notice referred to in this citation is the Ten-Day Notice described in the OSM Directives at INE-35. The inspection circumstances which existed during the Kerr Coal bond release inspection fit into the scope of the inspections contemplated under Part 843.12 (2). Thus, the procedure which Mr. Rathbun was to have followed is quite clear in the Federal Regulations. If Mr. Rathbun believed that a violation had existed, the Federal Regulations require the AFO to issue Colorado written notice (Ten-Day Notice) of such. Taking direct Federal enforce- ment in violation of the Federal Regulations exhibits a complete disregard for the Federal Regulations under which the OSM is required to conduct business, as well as a disregard for the Cooperative Agreement. The disdain for the Colorado program and the disregard for the Cooperative Agreement which Mr. Rathbun has repeatedly exemplified is clearly exhibited in the remarks he has made to Kerr Coal Company personnel. Attached is a transcript of Mr. Rathbun's remarks made during the issuance of the Federal violation: Apparently, Mr. Rathbun has determined that Colorado is not fulfilling its obligations under the Cooperative Agreement, and is concerned that Colorado is in fact negligent is its implementation of the approved program. Apparently, Mr. Rathbun is advocating a thorough evaluation of the Colorado program in order to determine the degree of negligence employed by the State. Colorado has received no such indication from the AFO. Remarks of this sort to an operator are inappropriate. The attitude of disdain towards the Colorado program appears to be prevalent in the Inspection and &rforcement branch in Albuquerque. In the Summer of 1993, a Federal violation was issued at another mine in Colorado. The State filed an objection to that