2011-05-12_ENFORCEMENT - C1981008 (3)

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insignificant precipitation events were recorded both in Nucla and at the New Horizon Mine during the period which you expressed concern that soils were too wet to conduct operations. Because the recorded precipitation amounts were neither significant nor sustained during this time, the probability that the soil was saturated and/or damaged as a result of topsoil salvage operations at the time of your complaint appears to be quite unlikely. Moreover, digital photographs submitted as part of the January 14, 2011, DRMS inspection report, as well those supplied by WFC in its January 17, 2011, letter of Lift "A" topsoil dated December 28, 2010, serve to corroborate DRMS's determination that the soils were not saturated and were being handled in accordance with WFC's approved permit and the Colorado Rules. Consequently, the best and most reliable evidence available to me as provided by all parties' concerned dictates that I uphold the DFD's finding that that soils could not have been saturated at the time of your citizen's complaint and were being handled under proper conditions. 4. You reiterate your previously expressed concerns alleging that coarse rock fragments were not removed prior to topsoil replacement. Your original complaint was included in the TDN that was issued to DRMS on January 12, 2011. The State's response to that part of the TDN, as well as the other violations you have alleged pertaining to the operation and reclamation plans for prime farmlands in PR-6, will be addressed by OSM through a technical evaluation of DRMS's permit findings that is being conducted as part of the TDN process. Conclusion: I find that the DRMS did show good cause for taking no further action regarding the alleged violation in TDN X11-140-182-001. While voluminous, the inconclusive and unsubstantiated nature of the information and photographs you submitted simply does not provide me with the rebuttal evidence necessary to overturn the rationale that serves as the basis for the DFD's decision and find that saturated prime farmland soils were damaged as a result of topsoil salvage operations that were conducted at the mine. For instance, the precipitation information you acquired via telephone from the National Weather Service is for Uravan which is 17 miles from Nucla, and the probative value of your photographs is severely diminished due to their poor quality and the fact that they are not identified either by specific date or location. Conversely, the local precipitation data and photographic evidence provided in DRMS' inspection report demonstrates that while the soils may have been moist/wet at the time of your citizen's complaint, they were not too wet to handle indicating that WFC's topsoil salvage operations did not damage the chemical and physical properties of the soil and that erosion, contamination, and/or unnecessary compaction was minimized in accordance with Colorado Rules 4.06.2(5) and 4.06.3(2) and the approved New Horizon Mine permit. Accordingly, DRMS' response to the TDN was not arbitrary, capricious or an abuse of discretion under the approved Colorado program. Based on the foregoing, the determination of the DFD on February 4, 2011 is hereby affirmed. If you do not agree with this decision, you have the right under 43 CFR § 4.1280 et se g. to appeal to the Department of the Interior's Office of Hearings and Appeals. If you wish to appeal this decision, your written notice of appeal must be filed within 20 days from receipt of this decision at the following address: Office of Hearings and Appeals Interior Board of Land Appeals 801 N. Quincy Street, Suite 300 Arlington, Virginia 22203