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Mr. Michael Long September 7, 1993 Page 3 For the reasons stated above, NOV C-93-112 must be vacated. 2. Topsoil Consolidation In NOV C-93-113, the Division alleges that Mountain Coal Company "[failedl to submit proper permitting documents prior to relocating topsoil piles." Mountain Coal Company did consolidate two small topsoil piles in the Sylvester Gulch area with a larger topsoil pile on the east slope of the West Elk Mine refuse pile in the fall of 1992. The relevant regulatory standard provides that "(s]tockpiled topsoil and other materials shall not be moved...unless approved by the Division." Regulation §4.06.3(211b1. The Division knew of and approved the consolidation of these topsoil piles: • A Colorado Mined Land Reclamation Coal Inspection Report, attached as Exhibit I, describes the inspection of the West Elk Mine by the Division on September 15, 1992. Pages 2 and 3 of the comments to that report describe the Inspector's review of topsoil management at the Mine, and notes in that "(t]he topsoil at the refuse pile between the Sylvester Gulch and access road will be moved to the terrace of the refuse pile within the next week." That same Inspection Report concludes that "[n]o enforcement actions were taken as a result of this inspection and none are pending." • In an Inspection Report from September 30, 1992, attached as Exhibit J, the Inspector notes that "]t]he topsoil pile located near the refuse pile, the small one across the access road, is being hauled to the terrace at the front of the refuse pile." No enforcement action was taken as a result of this inspection. • Finally, in an Inspection Report from an inspection conducted on November 18, 1992, attached as Exhibit K, the Inspector reports that "[t]he topsoil and subsoil piles previously located along the Sylvester Gulch road have been moved to the east bench on the refuse pile." Again, no enforcement action was taken as a result of this inspection. Mountain Coal is confident that the Division Inspector will confirm that she was fully informed of every step in the relocation of these topsoil piles -- from planning to execution.