2011-10-04_REVISION - C1981008 (5)

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f. Berry, David From: Berry, David Sent: Tuesday, October 04, 2011 2:00 PM To: 'Chris Mcanany'; 'kwalker @osmre.gov'; 'steve.park @co.usda.gov' Cc: 'Joellen Turner'; 'Retrum, John'; 'Jeff Fugate' Subject: RE: Western Fuels Colorado, LLC Thank you Chris. We will look into the concern. David From: Chris Mcanany Finailto:mcananv @dwmk.coml Sent: Tuesday, October 04, 2011 10:15 AM To: Berry, David; 'kwalker @osmre.gov'; 'steve.park @co.usda.gov' Cc: 'Joellen Turner'; 'Retrum, John'; 'Jeff Fugate' Subject: Western Fuels Colorado, LLC David: I write to alert you to a concern expressed by my clients following receipt of TR -61, the proposal for additional soil sampling on the Morgan property. Ms. Turner and Mr. Morgan report that they have recently witnessed Western Fuels personnel moving top soil and emplacing same on the surface of the "bench one" stockpiles on the Morgan property. They view this activity (which seems to be disconnected from any other operations) as an attempt to cover up or at least amend the bench one material in advance of the upcoming soil testing, apparently in an attempt to influence the results. My clients have personal experience with other instances where Western Fuels employees were told to conceal information from regulators, and they believe that Western Fuels will try to "cheat" in the upcoming round of testing. I am confident that Western Fuels will deny that this activity is going on, and I don't know if these actions would have any effect on the testing regime, but I want you to be aware of it. I write to request that you take this information into account in developing a testing protocol in TR -61. I had hoped that something short of treating the Morgan property as a "crime scene" would be in order, but perhaps it is necessary that Western Fuels be directed to preserve all existing stockpiles and soils as is, and that no modifications to same be made pending completion of the testing. Secondly, it may be necessary that DRMS staff select the specific testing sites. Third, it may be necessary that testing go to greater depth where material has been disturbed. Finally, more total samples may be required. Perhaps your soils experts have other ideas as to get truly representative results from the testing. I am copying OSM and NRCS in on this message in the hopes that the parties can cooperatively develop a protocol that takes these concerns into account. Thanks again for your cooperation on this matter. My clients genuinely appreciate the action of the agencies in addressing their concerns. Christopher G. McAnany Dufford, Waldeck, Milburn & Krohn, LLP 744 Horizon Court, Suite 300 Grand Junction, CO 81506 mcanany(a�dwmk.com (970) 248 -5862 - Direct Line (435) 259 -2225 - Moab, Utah (970) 243 -7738 — Facsimile DUFFORD WALDECK 411.1 MILBURN & KROHN LIP Ananney$aiLaw 0.4 1