2011-10-04_REVISION - C1981008 (7)

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Berry, David David: Christopher G. McAnany Dufford, Waldeck, Milburn & Krohn, LLP 744 Horizon Court, Suite 300 Grand Junction, CO 81506 mcananv(c�dwmk.com (970) 248 -5862 - Direct Line (435) 259 -2225 - Moab, Utah (970) 243 -7738 — Facsimile DUFFORD WALDECK MILBURN & KROHN ti IP ( I A ir Attorneys al taw wec V-61 From: Chris Mcanany [mcanany @dwmk.com] 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 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. CONFIDENTIALITY NOTICE: This electronic transmission and any accompanying documents contain information belonging to the sender which may be confidential and legally privileged. This information is intended only for the use of the individual or entity to whom this electronic transmission was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this transmission is strictly prohibited. If you have received this transmission in error, please call collect at 970 - 241 -5500 and delete this transmission. Thank you. IRS CIRCULAR 230 NOTICE: This electronic mail transmission and any attached documents may contain provisions concerning a federal tax issue or issues. Under recently issued IRS regulations, we must inform you this electronic mail transmission and any attached documents are not intended or written to be used, and cannot be used, by any taxpayer for the purpose of avoiding penalties that may be imposed on any taxpayer by the Internal Revenue Service. 1