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Ms. Terry Debin <br />Mr. Tom Japhet <br />November 24, 2010 <br />Page 5 of 9 <br />that relationship at a critical moment during an approval process that meant life and death to <br />WFC. <br />2. Disregard of MSHA Certification and Other Safety Protocols <br />As OSM and NRCS both know, government inspectors are subject to the requirements of 30 <br />CFR Part 48, Subpart B, and MSHA site - specific hazard training is therefore required before <br />these personnel can enter an active coal mine even where, as was the case here, the New Horizon <br />Mine has temporarily suspended operations pending repair of a turbine in the Tri-State power <br />plant located in Nucla. <br />Of the personnel present that day, only Jim Boyd had the requisite current site - specific MSHA <br />certification (his certification expired November 23, 2010). Dave Dearstyne and OSM <br />inspectors Robert Postle, Rick Williamson, and Amy McGregor do not have current certification. <br />Moreover, under WFC's MSHA safety program, even certified visitors cannot tour the mine <br />without an escort by either the Division or WFC. These simple rules, well known to both NRCS <br />and OSM, are for obvious safety reasons, and we ask that the agencies observe them going <br />forward. The November 16 reports are unclear as to where the inspection activities were <br />conducted (an omission we find at best curious), so we do not know if MSHA rules were actually <br />violated in this instance. <br />3. Substantive Errors in the Report <br />However, the most significant aspect of the surprise procedure employed by NRCS and OSM <br />was that the inspectors were then deprived of access to accurate and truthful information <br />concerning the use of subsoil materials as these are actually required by PR -06 and not as the <br />objectors have, falsely, characterized such usage. Instead, the inspectors appear to have relied <br />upon certain incorrect factual assumptions probably supplied by the objectors. These errors are <br />significant enough to render the November 16, 2010 reports written by Dearstyne and Boyd <br />essentially irrelevant to PR -06 and unworthy of reliance by any party for any purpose. <br />First, the reports err by focusing on an unspecified "51 acre area" without regard to the fact that, <br />under PR -06 as actually written, substitute subsoil will only to be used in reclamation of a much <br />smaller area. The reports also ignore what is being done on the remainder of the Morgan <br />property which in total encompasses 108 acres. These related errors are significant because the <br />relevant standard under the Colorado coal program (Rule 4.25.2(4)) is to avoid decrease in the <br />"aggregate total prime farmland acreage." Thus, evaluation of the reclamation plan must focus <br />on what is being done on the entire property rather than focusing on one part to the exclusion of <br />the remainder, and must of course accurately characterize what is being done on each part of the <br />property. <br />