1993-11-15_PERMIT FILE - C1981017

• Permit No: C1981017
• IBM Index Class Name: Permit File
• Doc Date: 11/15/1993
• Doc Name: Request for federal; Intervention ‎(Part 1of 2)‎
• Media Type: D
• Archive: No

to issue a Notice of Violation as requested by the AFO. The
issuance of a Notice of Violation without evidence or, at a
minimum, a reason to believe a violation exists is contrary to
the minimum standards of evidence necessary to sustain such an
action. However, the Division did believe that a violation of
the standards of operation of the diversion ditch had occurred,
and therefore issued a Notice of Violation to Resources for
failure to maintain the ditch. Abatement of this violation
required that minimum design dimensions for the diversion be
established on-the-ground and maintained in compliance with
permit standards. The Acting Director of the Office of Surface
Mining, W. Hord Tipton, on October 1, 1993, overturned the AFO
determination and found that the State had in fact taken
appropriate action (Appendix 4) in resolving this issue.
Although the Acting Director's decision leaves open the question
of long term diversion ditch maintenance, Colorado believes that
his failure to uphold the AFO determination effectively resolves
the contention that the pre-law refuse is subject to the SMCRA
Title 5 requirements.
It may also be inferred that the Office of Surface Mining had
previously determined that no reclamation liability exists for
the lower, pre-law portions of the refuse disposal facility. In
the fall of 1991, the OSM Western Support Center performed a
reclamation cost estimate for the Coal Basin Mine. The purpose
of this estimate was to determine the appropriate amount of
performance bond necessary for the mine. The Western Support
` Center cost estimate did not contain a cost for reclamation of
the lower refuse disposal facility, because there is no
reclamation liability under SMCRA for this portion of the
facility. By correspondence dated January 24, 1992, the AFO
accepted the cost estimate developed by the Western Support
Center, and so notified the State.
Because stability of this refuse pile is not addressed by the
reclamation plan, and because it has not been affected by post-
law operations, the Division of Minerals and Geology, Office of
Active and Inactive Mines will evaluate this area to determine
whether it is eligible for stabilization under the Abandoned
Mined Lands Fund of Title 4 of SMCRA.
The stability of the foundation underlying the post law portions
of the upper refuse disposal area is a concern of the Division.
Dutch Creek flows adjacent to the base of a cliff which acts as
the foundation of the refuse disposal area. It is apparent that
the cliff face has suffered some slumpage near its crest within
the last year, perhaps as a result of infiltration due to the
heavy snow pack of 1992/1993 . Aerial photos obtained from the
U.S. Forest Service, Sopris Ranger District, show that the stream
has flowed adjacent to the cliff face since at least 1953 .
Although construction of the refuse disposal facility was
-2-