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Mr. Steve Renner May 6, 1991 Page 2 agreements through improper use of the TDN process. As set forth more fully below, OSM's actions are untimely, inappropriate, and contrary to the purposes of the Colorado Surface Coal Mining Reclamation Act (the "Act") and the Surface Mining Control and Reclamation Act("SMCRA"). 1. OSM is Not Following its Own Regulations to Correct a Proaramatic Problem. OSM's TDN is an inappropriate means of correcting alleged deficiencies in Colorado's bonding practices. Colorado, in accordance with statutory mandates, has consistently required bonds in an amount " sufficient to assure the completion of the reclamation plan if the work had to be performed by the regulatory authority in the event of forfeiture...." 30 U.S.C. § 1259(a), C.R.S. 34-33-113(1). Rockcastle currently maintains a $134,000 bond, which all parties agree exceeds the cost of reclamation work remaining to be completed at the site, and which is in accordance with the foregoing statutory provisions and CMLRD's rules. Moreover, OSM's concerns are not with Rockcastle's bond, which is in compliance with CMLRD regulations as determined by CMLRD, but rather with OSM's previously-admitted problems with CMLRD's regulations and CMLRD's interpretation of those regulations. Thus, OSM's concern is a programatic problem. Federal regulations specifically provide for procedures where OSM believes a State is not enforcing its program in accordance with SMCRA. 30 C.F.R. § 733 (1990). This procedure does not contemplate issuance of TDNs, nor has it been followed by OSM in this case. 2. The Agreement is an Alternative Enforcement Action. Contrary to OSM's position, the Agreement constitutes alternative enforcement. First, the Agreement was entered into to abate NOV C-90-007 and NOV C-89-034, and therefore the Agreement not only constitutes alternative enforcement, but in fact abates these violations. Second, the Agreement was prepared in response to Rockcastle's expired permit, and deliberations by the Colorado Mined Land Reclamation Board ("CMLRB") to forfeit Rockcastle's bond. The Agreement provides a framework for completing reclamation work at the site pursuant to a compliance schedule in accordance with CMLRD Rule 3.04.1(2). Compliance schedules are clearly alternative enforcement mechanisms, and are explicitly provided for by both CMLRD rules and federal regulations. CMLRD Rule 3.04.1(2), 30 C.F.R. 800.50(a)(2) (1990). Finally, Rockcastle was placed under alternative enforcement through formal action of the CMLRB in May 1990. oSM had notice of this proceeding, yet it did not challenge the validity of this decision at that time.