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Re: Ten-Day Notice #X11-140-182-003 April 26, 2011 <br />Western Fuels, New Horizon Mine, Permit C-1981-008 <br />The technical review of PR-06 is estimated to conclude on May 6, 2011. At that time, we will make <br />determinations on all of the Ten-Day notice issues that have been deferred to this point. The PR-06 <br />review will require additional evaluation time and input from several technical experts. In our opinion, <br />OSM's determination regarding the PR-06 prime farmland reclamation plans is vital to reaching a <br />comprehensive understanding of the multiple issues raised by Ms. Turner and the related responses you <br />have provided. This level of understanding is necessary in order to make a valid determination on your <br />responses to the items cited above, as well as on PR-06. As a result, it is not practical for OSM to provide <br />a written determination on the adequacy of your response on Items 1 and 3 within ten days. <br />In response to Item 2 of the TDN, you address the issue of records being unavailable for copying at the <br />county courthouse. Specifically, the Division responded that the courthouse allows an individual to bring <br />a portable scanner or portable copy machine into the building so that the individual can make copies of <br />the available permit documents. Rule 2.07.3(4)(a) states that: <br />"The applicant shall make-a full copy of his or her complete application for a permit, permit <br />revision, technical revision, or permit renewal, except for data and/or other information if it is <br />determined by the Division to be confidential according to 2.07.5, available for the public to <br />inspect and copy. This shall be done by filing a copy of the application submitted to the Division <br />with the recorder at the courthouse of the county where the mining is proposed to occur, or <br />another equivalent public office if it is determined that that office will be more accessible to <br />local residents than the county courthouse." [Emphasis added] <br />Certainly, the intent of this rule language did not envision that citizens should be burdened with <br />somehow obtaining a portable scanner or portable copy machine in order to copy materials that, by law, <br />must be available for public inspection and copying in a county courthouse or another equivalent public <br />office designated by the Division. <br />Further, Item 2, of the citizen's complaint clearly alleges that permit documents are not available for <br />copy during court proceedings and that copying of the permit documents at the courthouse is not <br />allowed. Yet, the Division refers to Rule 5.02.4(1) in its response to this allegation and states that "all <br />New Horizon Mine permit records are available at the mine office during regular business hours" even <br />though the violation alleged in the TDN specifically cites Rule 2.07.3(4)(a). In the context of Colorado's <br />rules a mine office cannot reasonably be considered a public facility to be used by the public to inspect <br />and copy public records. <br />Based on the discussion above, it is our determination that the Division has not taken appropriate action <br />to correct the alleged violation, and I find your response to Item 2 in the TDN to be arbitrary and <br />capricious. Specifically, you have acted without proper evaluation of the relevant Rules and the Division <br />has allowed this violation to go unabated. <br />Moreover, because the Montrose County courthouse does not provide the public with the means to <br />copy permitting records, all documents must be relocated to a different public facility that is accessible <br />to local residents consistent with the requirements set forth in Rule 2.07.3(4)(a). <br />In accordance with 30 CFR 842.11(b)(1)(iii)(A), you may file a written request for informal review of this <br />determination within five days from receipt. Authority to conduct these reviews and render a final <br />decision has been delegated by OSM's Deputy Director to the appropriate Regional Director. Your <br />request for informal review may be submitted to Al Klein, Director, Western Region, Office of Surface <br />Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 80202. If you do not <br />Page 1 2