2010-06-18_ENFORCEMENT - C1981008 (2)

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exists. The Federal regulation at 30 CFR §842.11(b) (4) defines good cause to include "(i) under the State program, the possible violation does not exist." The question to be answered, therefore, is whether or not the DFD's determination that no violation exists (the DRMS' bases for claiming of good cause) was arbitrary, capricious or an abuse of discretion. Based upon the facts listed above, including information contained within the recent DRMS letters cited under item 17, and additional input gained from phone conversations with Mr. David Berry of DRMS and yourself on June 2, 2010, it is acknowledged that this case involves past permitting actions and on-the-ground soil salvage and reclamation activities that were apparently not without negative impact to you and the Morgan family. Nevertheless, owing to the findings and direction discussed in Mr. Berry's May 18, 2010 letters to WFC and yourself, I am encouraged that a clear path forward appears to have been developed by DRMS to ensure that the type of errors made in the past will not be repeated and to continue to ensure that the prime farmland soils on the Morgan property are salvaged in accordance with both state and federal laws, as well as the landowner's satisfaction. Consequently, it is my view that final resolution of this prime farmland soils matter cannot, and should not, be determined until a decision is made by the DRMS on WFC's pending permit revision application PR-6. As discussed in Mr. Berry's above cited letter, it is our understanding that the DRMS is to render a decision on the PR-6 revision application by June 17, 2010. Due to the findings and direction discussed in the DRMS's May 18, 2010 letters, and because a final decision has not yet been issued by the DRMS on the PR-6 permit revision application, I am proposing to delay my final response to your request for informal review of OSM/DFD's April 1, 2010 decision pending the outcome of DRMS's review of PR-6. Should you and the Morgan's agree with my proposal to temporarily delay the final response to your infonnal review request, please inform me in writing as soon as would be practical for you to do so. Of course, should you wish that I render a decision on your informal review request at this time and prior to DRMS's decision on PR-6, please inform me of same, as soon as possible. Your hard work and patience in aiding DRMS and myself in our efforts to come to a final satisfactory conclusion on this prime farmland soils matter, is greatly appreciated- I look forward to hearing from you. Sincerel r Allen D. Kl in Director, stern Region cc: Denver Field Division ?Colorado Division of Reclamation, Mining and Safety