_GENERAL DOCUMENTS - C1981017 (228)

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Mr. Michael Mechau 3 The above discussion demonstrates that the DMG has clearly and prudently exercised its authority in complying with the regulatory requirements set forth in Colorado Rule 3.04.2(6). In doing so the DMG has, to the fullest extent possible with monies secured through the bankruptcy liquidation plan, ensured that necessary reclamation of the Coal Basin site is being conducted. The DMG has stated more than once in correspondence to both the CVEPA and OSM that funds distributed from the liquidation plan have, so far, been sufficient to perform necessary reclamation. In addition, the DMG has initiated civil proceedings on two separate occasions in an attempt to seek reimbursement from the Mid-Continent Minerals Corporation and its principals for any costs in excess of the three million dollar reclamation cap. In essence the DMG has, in good faith, diligently pursued all available remedies to secure additional reclamation monies. Moreover, the DMG conducted a series of public meetings over a period of years where it repeatedly stated that it will reclaim the Coal Basin site to the very best of its ability based upon environmental needs and availability of funds. The DMG has also provided for the availability of its Project Manager to attend CVEPA meetings, to host organized tours of the site, and to discuss issues regarding Coal Basin reclamation. Conclusion The evidence supports a finding that ongoing reclamation is in fact being conducted by the DMG in accordance with Colorado Rule 3.04.2(6) and the provisions of the bankruptcy liquidation plan, which provides that the DMG is to receive three million dollars in cash and services for reclamation of the Coal Basin site. As MCR's assets continue to be liquidated, funds are delivered to the DMG for reclamation purposes. A letter dated March 30, 1998, from the DMG to OSM indicates that, to date, the funds distributed from the liquidation plan have been sufficient to perform necessary reclamation. The evidence also supports a finding that the DMG has provided both OSM and the CVEPA with a detailed accounting of current, as well as anticipated, reclamation costs and activities. For these reasons, OSM declines to perform an independent estimate of the cost of completing reclamation of the Coal Basin site. Furthermore, OSM deems it unnecessary to independently file a claim against the Mid-Continent Minerals Corporation, the Delaney's or Reeves at this time out of deference to the provisions of the bankruptcy liquidation plan and the DMG's authority to pursue additional reclamation funds in accordance with Colorado Rule 3.04.2(6) and the December 1996 Colorado Court of Appeals ruling. In the final analysis, the totality of the DMG's actions indicate that, notwithstanding the financial constraints imposed on it by the bankruptcy liquidation plan, it has availed itself of all potential regulatory and legal remedies in attempting to secure additional monies to ensure that necessary reclamation will be completed and that the provisions of Colorado Rule 3.04.2(6) are enforced. It is also clear, from the DMG's efforts to date, that it has satisfied the "arbitrary and capricious" standard of OSM's TDN regulations at 30 CFR 842.11. Under these Federal regulations, a state has ten days after notification of a possible violation in that state to take "appropriate action" to cause the violation to be corrected or to show "good cause" for failing to take such action. If the