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January 17, 2011 within which to evaluate rock picking and topsoil replacement activities. The <br />Division states that topsoiling activities on the Morgan property were confined to salvage <br />operations and that no topsoil redistribution activities occurred during this timeframe. However, <br />the landowner's concern did not identify deficiencies with reclamation activities taking place <br />from December 1 through January 17, but asserts that rocks were not removed prior to topsoil <br />being replaced on her property. <br />The coarse fragment standard was changed through Permit Revision #6 (upheld unanimously by <br />the Board effective December 8, 2010). However, any Morgan property which has been <br />regraded and prepared for or received topsoil redistribution must be evaluated under the coarse <br />fragment standard in effect at the time those activities were conducted. Annual reclamation <br />reports, Bench 1 suitability demonstrations, any other available data and field evaluation of the <br />property should be reviewed under appropriate permitting criteria in effect at the time those <br />reclamation activities were conducted. <br />Because the Division did not indicate it has reviewed available data or field evaluated regraded <br />and re-topsoiled areas on the Morgan property, but instead set an arbitrary timeframe within <br />which to assert reclamation activities had not occurred, I have determined that your response to <br />this concern was arbitrary. Reclamation of the Morgan property must be evaluated for <br />compliance regardless of the timeframe within which it was conducted. <br />In accordance with 30 CFR 842.11(b)(1)(iii)(A), you may file a written request for informal <br />review of this determination within five days from receipt. Authority to conduct these reviews <br />and render a final decision has been delegated by OSMRE's Deputy Director to the appropriate <br />Regional Director. Your request for informal review may be submitted to Al Klein, Director, <br />Western Region, Office of Surface Mining Reclamation and Enforcement, 1999 Broadway Suite <br />3320, Denver, CO 80202. If you do not request informal review, or if this determination is <br />upheld through informal review, a Federal inspection of the New Horizon mine will be <br />scheduled immediately. <br />If you have any questions, please contact me at (303) 293-5012 or Christine Belka of my staff at <br />(303) 293-5020. <br />Sincer , <br />Kenneth Walker <br />Acting Chief <br />OSMRE Denver Field Division