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??Qs?"T°`'yFy United States Department of the Interior <br />OFFICE OF SURFACE MINING <br />Reclamation and Enforcement <br />• ?igR?H s 18a? . Western Region Office <br />1999 Broadway, Suite 3320 <br />Denver, CO 80202-3050 <br />APR 2 6 2011pr_r0%JVD <br />David Berry <br />APR 2 $ 201 <br />Director, Coal Regulatory Program <br />Colorado, Division of Reclamation, Mining and Safety pivision o.zCiama;:on, <br />1313 Sherman St., Room 215 Mining Ural Sa{otj <br />Denver, CO 80203 <br />Re: New Horizon Mine, Permit C-1981-008 <br />Ten-Day Notice #X11-140-182-003 <br />Dear Mr. Berry: <br />OF <br />N6 <br />o? <br />Thank you for your letter dated April 8, 2011 (received April 13, 2011) in response to Ten-Day Notice <br />(TDN) #X11-140-182-003. This TDN pertained to citizen complaints alleging that (1) Western Fuels, <br />Colorado moved boundary markers, which delineated the 51 acres that had been mined before the <br />Morgan property was designated as prime farmland, by approximately 50 feet; (2) permit documents <br />are not available during court proceedings and that copying of the permit documents at the courthouse <br />is not allowed; and (3) subsoil sampling activities are not being conducted appropriately. <br />After receiving a response to a TDN from the Division of Reclamation, Mining and Safety (the Division), <br />the Office of Surface Mining Reclamation and Enforcement (OSM) must determine whether the <br />standards for appropriate action, or good cause for such failure, have been met in accordance with 30 <br />CFR 842.11(b)(1)(ii)(B). An action or response from the Division that is not arbitrary, capricious, or an <br />abuse of discretion under the state program shall be considered "appropriate action" if it causes a <br />violation to be corrected, or "good cause" if it shows valid reason for failure to take such action. <br />"Appropriate action" includes enforcement or other action authorized under the State program to cause <br />a violation to be corrected. "Good cause" includes: (i) under the State program, the possible violation <br />does not exist; (ii) the regulatory authority requires a reasonable and specified amount of additional <br />time to determine whether a violation of the State program exists. <br />It is OSM's goal to review and make a determination on State responses to TDN's within ten days of <br />receipt. However, as noted in INE-35 Part 6, (b)(4), Procedures (How long does OSM have to evaluate a <br />RA's response to a TDN *** ?), our review may be extended if there is a need for special expertise such <br />as legal assistance or technical review. Our initial review of the State's response to items 1 and 3 of the <br />TDN cited above indicates a need for extending the review period beyond the ten day standard, as the <br />matters raised are related to our ongoing technical review of the prime farmland reclamation plans <br />approved in PR-06. Specifically, item 1 references boundary markers that were put in place as a result of <br />reclamation zones delineated in PR-06, and Item 3 has to do with sampling activities that may have been <br />conducted on areas of the permit with the revised sampling standards of PR-06. <br />Page 11