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removing topsoil through saturated irrigation tailwater runoff ditches and the sort could <br />cause some intermixing of the different topsoil horizon(s) or subsoil layers. In this situation, <br />runoff water would be diverted to allow the soil to dry prior to stripping. In all cases, soil <br />removal operations will be conducted in a manner to ensure compliance with Rule <br />4.06.2(5)." <br />17. Section 2.05.4(2) (d)-13 of the approved New Horizon Mine permit addresses "Topsoil <br />Storage" and states, in pertinent part, that "[A]11 efforts will be made to direct haul and place <br />all topsoil excavated. When the direct haul of topsoil is not feasible, the topsoil will be <br />stored in stockpiles. * * * Topsoil stockpiles will either be located in areas that will not be <br />disturbed by the ongoing mining operation or in freshly backfilled areas prior to topsoiling. <br />This will be necessary especially at the end of mine life and on Morgan property prime <br />farmland in order to insure that topsoil is placed correctly for the post mine land use. <br />Stockpiles will also be place in areas where the stored topsoil will not be lost to wind erosion <br />or surface runoff. When a topsoil stockpile is placed, it will not be moved until soil is <br />needed for distribution on graded areas, or is consolidated into other existing stockpiles. <br />Stockpile locations were also evaluated and selected to minimize truck travel distance, to <br />reduce equipment cost, and to increase efficiency. Mine personnel are instructed that topsoil <br />stockpiles are not to be disturbed or contaminated. Signs will serve as continuing reminders <br />to personnel that stockpile areas are to be preserved and undisturbed. * * *." <br />18. Section 2.05.4(2) (d)-40 of the approved New Horizon Mine permit addresses "Irrigated <br />Cropland (Prime Farmland) Topsoil Preparation Procedures" and states, in pertinent part, <br />that "[T]opsoil replacement operations may be carried out during most of the year, the <br />exception being those periods when wet conditions would preclude handling of the topsoil <br />materials. * * *." <br />19. The alleged complaint that prime farmland topsoil was being stripped in the rain and under <br />snow was interpreted by DFD to mean that (1) topsoil salvage operations were conducted on <br />prime farmlands during periods of excessive precipitation and that the soil was saturated <br />with water, and (2) handling the soil could have damaged its physical and chemical <br />properties and operations would not have minimized erosion, contamination and/or <br />compaction. <br />Did Colorado show good cause for not taking action? The Federal regulation at 30 CFR § <br />842.11(b) (2) indicates that a State's action or response that is not arbitrary, capricious, or an <br />abuse of discretion shall be considered "appropriate action" to cause the violation to be corrected, <br />or "good cause" for failure to do so. The DRMS claimed good cause on the basis that no violation <br />exists. The Federal regulation at 30 CFR § 842.11(b) (4) defines good cause to include "(i) under <br />the State program, the possible violation does not exist." <br />The question to be answered, therefore, is whether or not the DFD's determination that no <br />violation exists (the DRMS' basis for claiming good cause) was arbitrary, capricious or an abuse <br />of discretion under the State program. Based upon the facts and additional information available <br />to me, I conclude the following: <br />6