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1. You question why DRMS is allowed to not send you a copy of their response to the TDN so
<br />you can send more documentation if needed before OSM makes a decision. GSM's TDN
<br />regulations set forth at 30 CFR § 842.11 and TDN Directive INE-35 delineates the process for
<br />responding to a citizen's complaint, and neither imposes an obligation on the State, in this case
<br />DRMS, to provide you with their response to a TDN before it is sent to OSM. Nevertheless, this
<br />office will endeavor to provide you with a copy of the State's response to any future TDN that is
<br />issued prior to making a written TDN determination.
<br />2. With respect to the photographs you submitted purportedly showing improper soil handling
<br />practices under wet conditions, the DFD's conclusion that they have little meaning without a date
<br />stamp or a point of reference, as communicated to you via a February 15, 2011, e-mail message is
<br />correct. Specifically, the photographs you provided to the DFD via Federal Express between
<br />January 26 and February 2, 2011, depicting wet and snowy conditions are in many cases very
<br />blurry or washed out and do not provide dates, locations, or any descriptive information other than
<br />some annotations you have handwritten on the back. The photographs that do show a recorded
<br />date of January 23, 2011, do not identify a location, nor do they capture active topsoil stripping
<br />operations. Consequently, the probative value of the photographs is severely diminished due to
<br />their poor quality and the fact that they are not identified either by specific date or location. You
<br />also stated in your appeal letter that you would "get a weather report for those days showing the
<br />rain on the 22nd and 23`d of December and for the snow on the 3`d of January and on." On March
<br />18, 2011, you provided handwritten precipitation information you claim to have acquired via
<br />telephone from the National Weather Service for December 2010 and January 1-4, 2011. You state
<br />that "For the month of December for Uravan (17 miles from us)," 1.76 inches of precipitation was
<br />received including 0.12 inches on December 22nd and 0.10 inches on December 23`d. While this
<br />information may be accurate for Uravan, it cannot be accepted as such for Nucla or the New
<br />Horizon Mine.
<br />3. The strongest evidence presented for determining whether prime farmland soils on the Morgan
<br />property were saturated at the time of your citizen's complaint is the precipitation data for
<br />December that was included in DRMS' January 14, 2011, inspection report, as well as the
<br />climatology data submitted in WFC's January 17, 2011, letter to DRMS for December 1, 2010,
<br />through January 14, 2011. Admittedly, the allegations contained in your citizen's complaint are of
<br />a time-sensitive nature, and the NRCS' March 29, 2011, response to OSM's request to review and
<br />analyze the climatology data provided in DRMS' inspection report, including the December 22-
<br />23, 2010, dates identified in your appeal, clearly demonstrates that several variables affecting the
<br />degree of soil moisture were unanswerable based on available information/data. In order to make
<br />a complete and technically accurate determination regarding saturation of prime farmland soils, as
<br />well as the potential impacts for damage to the chemical and physical properties of the soil
<br />including erosion, contamination and/or compaction as a result of topsoil salvage operations that
<br />were conducted at the mine, these variables would had to have been analyzed at the time of the
<br />December 23, 2010, date specified in your complaint. In other words, absent real-time on-the-
<br />ground analyses of those variables during the period of December 1, 2010, through January 14,
<br />2011, when topsoil salvage operations occurred at the mine, a determination that prime farmland
<br />soils were too wet to handle simply cannot be confirmed. Nevertheless, DRMS conducted an on-
<br />the-ground evaluation of the Morgan property in response to the TDN and did not find any
<br />evidence of saturated soil conditions or observe any damage thereto as a result of topsoil salvage
<br />operations. The climatology data supplied by DRMS and WFC indicates that sporadic and
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