2011-02-09_ENFORCEMENT - C1981008

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United States Department of the Interior ter, OFFICE OF SURFACE MINING Reclamation and Enforcement Western Region Office 1999 Broadway, Suite 3320 Denver, CO 80202-3050 David Berry FEB 4 2011 RECEIVED Director, Coal Regulatory Program FEB 09 2011 Colorado Division of Reclamation Mining and Safety 1313 Sherman St. Room 215 Divisi„-? iieclarnaiion, Denver, Colorado 80203 Mining and Safety Re: TDN #X11-140-182-001, Western Fuels, New Horizon Mine, Permit # C-1981-008 Dear Mr. Berry: Thank you for your letter dated January 20, 2011 (received January 26, 2011) in response to ten day notice (TDN) #X11-140-182-001. This TDN pertained to citizen complaints alleging that prime farmland soils were improperly handled under wet conditions and rocks were not removed prior to topsoil replacement on prime farmlands at the New Horizon mine. After receiving a response to a TDN from the Division of Reclamation Mining and Safety (the Division), the Office of Surface Mining Reclamation and Enforcement (OSMRE) must determine whether the standards for appropriate action, or good cause for such failure, have been met in accordance with 30 CFR 842.11(b)(ii)(B). An action or response from the Division that is not arbitrary, capricious, or an abuse of discretion under the state program shall be considered "appropriate action" if it causes a violation to be corrected or "good cause" if it shows valid reason for failure to take such action. "Appropriate action" includes enforcement or other action authorized under the State program to cause a violation to be corrected. "Good cause" includes: (i) under the State program, the possible violation does not exist; (ii) the regulatory authority requires a reasonable and specified amount of additional time to determine whether a violation of the State program exists. The first citizen complaint forwarded to the Division in this TDN identified potential improper soil handling practices under wet conditions. The Division has provided adequate documentation to establish that soils could not have been saturated at the time. Rainfall data indicate negligible amounts of precipitation during the month of December and well into January; encompassing the timeframe the complainant alleged soils were too wet to conduct operations. This is a time-sensitive complaint because rainfall would need to be significant and sustained over a period of time to saturate the soil. Photographic evidence dated December 28, 2010 and January 14, 2011 supports the Division's assertion that soils were not saturated and were being handled under proper conditions. OSM concurs with the Division that a violation of Rules 4.06.2 and / or 4.06.3 does not exist. This constitutes good cause for failure to take action on this alleged violation. The second citizen complaint forwarded to the Division in this TDN alleged rocks were not removed prior to replacing topsoil. No date range is associated with this allegation. The Division appears to have established an arbitrary date range of December 1, 2010 through