2012-06-04_REVISION - C1981014 (2)

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dominated by a "visually dominant perennial species" as required by their regulations. When EFCI embarked on changing the proposed RA, we assumed that the CDRMS would welcome this much needed correction, rather than opposing this change which only perpetuates the confusion associated with this issue. EFCI further submits that the currently approved RA is contrary to the Divisions regulations found in Rule 4.15.7(3)(b), which requires that the "permittee shall demonstrate statistically, to the satisfaction of the Division, that each proposed reference area is comparable to its equivalent area to be disturbed in terms of vegetative cover and herbaceous productivity ... " EFCI submits that since the CDRMS has never required this information as required by their regulations for all of the reclaimed areas located at the Southfield Mine Portal area, which were disturbed prior to or after 1980, they have not followed their regulations in demonstrating that the currently approved RA is "comparable" to these reclaimed areas. During our extensive review of the historical information, EFCI has never once seen where the CDRMS has ever requested any "demonstration" that the currently approved RA is "comparable" with the vegetation to be disturbed or the reclamation to be conducted on this site. EFCI requests that the Division provide this information at this time. Rule 4.15.7(3)(b)(iii) requires that when the vegetation structure of the "area to be disturbed will differ significantly from pre- mining, a reference area may be selected based on its approximation of vegetation characteristics which reflect reclamation plan objectives ... " Again, the CDRMS has approved a reclamation plan which converts a "pinyon juniper plant community" to a grass dominated plant community, but has totally ignored their regulation which requires an analysis of how the existing RA was selected based upon its "approximation of vegetation characteristics which reflect reclamation plan objectives..." EFCI submits that no such information is available and had the CDRMS followed their regulations, there is no way the currently approved RA could have ever been approved or its use perpetuated over the past 32 years. Concern: Page 8 of TR39 application states, "The fact that this site adjoins a previously disturbed site which by their own standards contains 'numerous introduced species' and which also possess a pronounced bias due to their proximity to the boundary of two different vegetation types renders this site totally unsuitable with respect to a reference area using the current regulatory standards and policies of the DRMS " The Division concurs that the small size of the currently approved Portal reference area is problematic and falls below the recommended reference area size of three acres (Guidelines for compliance with Land Use and Vegetation Requirements of the Colorado Mined Land Reclamation Board for Coal Mining, October 1988, and Rule 4.0157. (3)c)) [sic]. The Division suggests that enlarging the reference area to the southeast and northeast could be a potential solution. Based upon walking the site and locating the southeast and northeast corner post of the reference area, the Division disagrees that the approved reference area extends into the previously reclaimed roadway. This reclaimed roadway appears to be associated with the historic Peacock mine. Response: It is unbelievable to hear the Division report that "based upon walking the site and 5