2010-04-23_ENFORCEMENT - C1981008

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TDN Response New Horizon Mine April 23, 2010 Page 5 FARMLAND CRITERIA BASED ON ONE OR MORE OF THE FACTORS LISTED IN RULE 2.04.12, THE ENTIRE 107.96 ACRE AREA IS CONSIDERED PRIME FARMLAND IN ACCORDANCE WITH DRMS REGULATIONS, AND WILL BE RECLAIMED AS IRRIGATED CROPLAND IN ACCORDANCE WITH THE REQUIREMENTS OF RULE 4.25. Following the Division's review process for RN -05, the proposed decision to approve, with conditions, renewal of the New Horizon Mine permit was issued on August 24, 2009. That same day, letters were mailed to JoEllen Turner and Mike Morgan and to Mr. and Mrs. Frank Morgan, informing them of our proposed decision, in accordance with Rule 2.07.4(2)(c). A copy of our written Findings document was enclosed with the letter to the Morgans. In addition, on August 25, 2009, the Division left a voice message on JoEllen Turner's home phone, informing Ms. Turner and Mike Morgan of our proposed decision and of the letters being mailed to them and to Mr. and Mrs. Morgan. A Public Notice announcing the Division's proposed decision appeared in the San Miguel Basin Forum on the September 3 and 10, 2009, as required by Rule 2.07.4(2)(d). No objections to the proposed decision were received by the Division, and the renewal was formally issued on October 8, 2009. Technical Revision No. 55 (TR -55) was received on November 15, 2007 and deemed complete on November 20, 2007. WFC published notice of TR -55 for four weeks on December 6, 13, 20, and 27, 2007. TR -55 was submitted in response to the Division's December 23, 2005 Midterm Review (MT- 5) requesting clarification of land use classifications and revegetation issues. However, there were other changes proposed in this revision, particularly the re- designation of post mining land uses on certain properties (north of the Morgan Property) that generated considerable objection from area landowners. These post- mining land use changes generated such substantial concern from area landowners, including Ms. Turner, that WFC chose to withdraw the revision (on February 21, 2008) in order to address the various concerns in a more comprehensive revision at a later date. Technical Revision No. 57 (TR -57) was submitted March 28, 2008 and approved on March 4, 2009. The TR -57 application was submitted at the direction of the Division to identify prime farmland soils within portions of the New Horizon permit area, to revise soil handling practices to conform with prime farmland requirements where applicable, and to address other revisions to the soil salvage and replacement plans as warranted to ensure compliance and achievement of reclamation plan objectives. To a large extent, the need for TR -57 was driven by Division consultation with the NRCS during 2008, which revealed that the Division's negative findings in PR -05 (2000) and RN -04 (2003) regarding the presence of prime farmland in the permit area, were dated, and thus no longer applicable to permit area lands west of 2700 Road on the Morgan Property. TR -57 formally revised the permit to incorporate the soil management provisions required during the February 15, 2008 meeting. As stated above, in February 2008 WFC had mined through a portion of the Morgan property. There were 51.6 acres where topsoil had been stripped. Of the 51.6 acres, 7.63 acres had been topsoiled on the eastern edge of the Morgan property, and an additional 27.9 acres had been backfilled with at least 26 inches of Bench 1 material. The bench 1 material was tested for subsoil suitability by Walsh Environmental to a depth of 2 feet and found to be suitable. (See Walsh report Attachment 2.05.4(2)(d) -1 in permit). Map 2.04.9 -2, Topsoil Balance Map as of February 2008 shows the pit location, where topsoil had been removed and where topsoil had been replaced. On the 51.6 acres where topsoil had been stripped and not yet replaced, WFC committed to replace (p. 2.05.4(2)(d) -34) a