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10. It is the considered judgment of the under- <br /> signed and of MLRD officials including Ms. Candice Thompson, <br /> and Messrs. Jim Herron, Jeff Deckler, Fred Banta, and Mike <br /> Long that the material dredged from the Catchment Basins <br /> into the embankments was not in fact topsoil of the kind or <br /> in horizons requiring separate stockpiling. <br /> 11. Affiant on behalf of the Permittee, having <br /> ' obtained express approval for the construction of the <br /> Catchment Basins under the best available technology program <br /> as a cooperative effort to correct a pre-SMCRA condition <br /> believed, and continues to believe, that the authorization <br /> so granted was designed to and did include the method of <br /> disposition or handling of the excavated and dredged material <br /> and that if topsoil did in fact exist, that the alternative <br /> procedure used provided "equal or more protection for the <br /> topsoil" thereby justifying a division to approve an <br /> alternative. <br /> 12 . Affiant was present during re-inspection of <br /> the Catchment Basins by Mr. Gary Fritz who thereafter <br /> issued NoV 85-2-244-12. At the time Mr. Fritz served the <br /> NoV on Mr. Robert Delaney, Mr. Delaney stated in substance: <br /> "It is our understanding you are not requiring any removal <br /> of soil at this time; the abatement action desired is that <br /> this event not be repeated; at this time there is nothing we <br /> can or should do with respect to this item" to which Mr. <br /> Fritz indicated that was correct. Further, Mr. Delaney <br /> inquired what was meant by the word "medium" in #2 on the <br /> NoV to which Mr. Fritz replied that this meant the B, C or D <br /> horizons or a combination. Mr. Delaney inquired if regulatory <br /> approval was required to come from both MLRD and also OSM, <br /> to which Mr. Fritz replied that was correct and further <br /> stated that prior to disturbing any additional area where <br /> there is a question concerning the soil or subsoil, the <br /> Company should get approval to use an alternate medium, or <br /> approval not to save it. In response to a further question <br /> Mr. Fritz stated that OSM was not requiring any action at <br /> this time, and was not prohibiting removal or movement of <br /> dirt, except where there is a question. <br /> 13. Further affiant sayeth not. <br /> DOUGLAS W. BOWMAN <br /> Subscribed and sworn to before me this 14th day of <br /> November, 1985 by Douglas W. Bowman. <br /> My Commission expires : June 24 , 1989 <br /> WITNESS my hand and official seal. <br /> &�� _/ <br /> Notary Public <br /> 818 Colo. Ave. <br /> 3 <br /> Glenwood Springs, CO 81602 <br /> - - <br />