2011-03-30_ENFORCEMENT - C1981008

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with the requirements of Colorado Rule 2.06.6(4) (c). Second, permitting provisions set forth in Colorado Rule 4.25.4(1) require consideration of increased soil depths above the minimum when necessary to restore the original soil productive capacity. Once DRMS realized the Morgan Property was prime farmland, the minimum soil handling standards were inserted into the permit. However, there was no apparent consideration of the need for increased soil depths beyond the minimum redistribution standard of 48 inches. While DFD case records show that these exclusions were considered to be permitting deficiencies, it is apparent that DFD did not factor the on- the - ground relevance of these deficiencies into the final TDN decision. At the time it was discovered that the Morgan property was prime farmland, DRMS could have halted the operation and required WFC to further revise the permit to address the deficiencies therein, including the provision of proof of the technological capability of the soil reconstruction plan to restore the prime farmlands to 100 percent of the productive capacity that existed prior to mining. Moreover, because DRMS assigned a stipulation (No. 16) requiring WFC to, within 30 days following issuance of the final decision for RN -5, submit a permit revision application including; among other things, comprehensive amendments to the prime farmland investigation and the prime farmlands sections of the permit application, it is apparent that the permit renewal application (RN -5) was not in compliance with the Colorado Program [Colorado Rule 2.08.5(3)]. I therefore find that DRMS's approval and issuance of the permit renewal (RN -5) to WFC at that time was arbitrary, capricious, and an abuse of discretion. Also, because DFD did not factor the entire permitting record and the associated technical analysis for making prime farmland soils decisions into its decision on the TDN, DFD did not have a basis for determining whether the approved prime farmland reclamation requirements found in TR -57 were technically sufficient. This leaves OSM in the position of not being able to fully respond to your citizen's complaint. More specifically, an adequate response to your complaint cannot be provided without evaluating the technical basis of the prime farmland soil reconstruction decision made by DRMS. As such, I find that the DFD decision was an incomplete consideration of your citizen's complaint. Additionally, subsequent to DFD's decision, the record reflects that on May 18, 2010, DRMS sent letters to you, WFC, and the Morgans acknowledging serious permitting defects with the New Horizon Mine and directing WFC to work with the Morgan property landowners to address unresolved issues that involve both regulatory compliance and landowner coordination. Along these lines, DRMS instructed WFC to resolve. several pending permit issues via PR -6, including: 1) the need to acknowledge that all lands on the Morgan property are prime farmlands; 2) the need to acknowledge that the post - mining land use on the entire acreage of the Morgan Property is irrigated cropland; and 3) the need to include a proper prime farmland success standard. DRMS also advised that it may be required to pursue enforcement procedures if the permitting defects have resulted in performance standard- related noncompliance and/or if the pending permit matters are not resolved by the June 17, 2010, decision deadline for PR -6. The fact that DRMS recognized the permit was defective further raises questions as to whether DFD's determination was complete and/or correct in evaluating DRMS's prime farmland- related decisions. Conclusion: As you are aware, the operation and reclamation plans for prime farmlands within TR -57 have been amended with the State's approval of PR -6. Because the operation and reclamation plans are now largely based on the recently approved PR -6 plans, ordering a Federal inspection and potentially requiring a permit revision in response to the citizen's complaint you filed on TR -57 would not appear to be a productive or useful action for OSM to pursue at this E:3