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Response: Empire described a revision to the requested liability release area in revised bond release application pages received October 25, 2004. Empire did not submit a map showing the revised liability request area with the October 25, 2004 submittal. At the November 18, 2004 bond release inspection, Empire provided one copy of the revised release request area map. This copy was used in the field, was marked up with field notes, and sustained some damage due to the precipitation encountered during the field inspection. The Division requested at least one more copy of the revised map to keep with the application file. Empire submitted two copies of the Liability Release Areas, Map 1, on December ]6, 2004. The submittal of these revised maps fulfills the Division's request for revised maps. Empire provided two additional maps of the revised Liability Release Area on January 24, 2005. No additional information is needed for Adequacy Item 9. Items Identified by the Division After Review of the Application and the November 18-19, 2004 Bond Release Inspection: 10. Please indicate the RAG-EGBTU-Empire position regarding oz~r recommendation that the application must be reviewed as a full pDutse I, II arad Ill liability release for the area in question. We offer this recommendation to be consistent with existing statute and regulations. Response: Empire's original partial liability release submittal was predicated on both the bonding requirements under CRS 34-33-125 and the CMLRD Policy memorandum of April 13, 1987, which indicated that the Division may release the bond or reclamation liability after all mining is completed and the "major subsidence effects, if any, have manifested". It is important to emphasize that, relative to the overriding objectives of public health, safety, and protection of the environment, the only potential liabilities associated with underground coal mining operations are major surface subsidence features that could pose a risk to human or animal safety, or result in surface instability, any adverse surface drainage • impacts, and drainage of poor-quality water from the mine that could result in surface or ground water degradation. In reading the bond release provisions under Rule 3.03.1, it is readily apparent that the provisions are directed toward surface mining operations and/or direct surface disturbance associated with underground mining (ie: facilities areas, roads, etc.). The noted provisions do not directly or adequately address the minor surface disturbance (ie: surface cracks or holes) that may be associated with subsidence resulting from underground mining operations. Specifically: • The provisions for partial bond release for backfilling, grading, drainage control, and vegetative reestablishment have limited or no relevance to minor surface subsidence effects • The corresponding reclamation liability period for revegetation does not make sense for a subsidence liability release, since significant vegetation loss and consequent requirements for vegetative reestablishment are not typically associated with the minor surface subsidence resulting from underground coal mining • No bond is held for the underground mining areas • Subsidence effects are addressed in both the statute and regulations as an operational rather than a reclamation and bonding consideration by the specific and detailed provisions of Rules 2.05.6(6) and 4.20 Given these considerations, both Empire and the CDMG have struggled with how to handle the release of liability for underground mined areas. Empire relied on the limited directly relevant guidance provided by the CMLRD Policy memorandum of April 13, 1987, while the CDMG has based its recommendations on the Rule 3.03.1 provisions. Given the limitations of either of these approaches, Empire requests that Liability Release Response - No. 3 4 12/07/05