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U. S. Department of the Interior <br /> Office of Surface Mining <br /> November 14 , 1985 <br /> Page - 2 <br /> 2. The State of Colorado, made a determination <br /> that the disturbed area did not contain topsoil, or classi- <br /> fiable subsoils, (.Exhibits 1, 2 , 3, 4 , 8, 10) . Rather <br /> it consists of a homogeneous combination of talus, detritus <br /> and coal from the steep mountainside above, combined with <br /> avalanche debris, and with trommel screen rock/coal and <br /> other coal mine refuse deposited over many years prior to <br /> SMCRA. The structures designated as "BAT ponds" on the NoV <br /> consist of and were permitted as a series of erosion and <br /> sediment control devices made by pushing this unconsolidated, <br /> unlayered material into embankments designed to slow the <br /> velocity of the water coming down the steep slope; to afford <br /> partial sedimentation control, and to prevent additional <br /> sedimentation caused by erosive activities of the high <br /> velocity runoff water, as well as snowmelt from large snow <br /> piles deposited by massive avalances. As a BAT voluntary <br /> cooperative effort with minor impacts, no reclamation <br /> plan or bonding was required. <br /> Before proceeding with this work, the matter was <br /> discussed in detail with representatives of MLRD and approval <br /> was granted not only for the construction of these facilities, <br /> but also for the method of construction, including the <br /> utilization of the dump material in the embankments, all <br /> of which was within the authority invested in the State of <br /> Colorado to make such approvals on a BAT basis, and to <br /> approve minor modifications . (See exhibits attached) <br /> This was a voluntary cooperative action not <br /> mandated by OSM or MLRD; was the best method devised to <br /> control an erosion/sedimentation problem; enhanced rather <br /> than harmed the environment, resulted in saving rather <br /> than losing topsoil or classifiable horizons; occurred <br /> in an area where it was counter productive to separately <br /> pile soil and should be accepted as an "alternate procedure" <br /> that will "provide equal or more protection for the topsoil" <br /> whereby "the Division may approve an alternative" , even if <br /> topsoil did exist, per C.C.M.R. Sec. 4 . 06 .1 (2) . <br /> 3 . If OSM determines that a violation in fact <br /> did occur and that the NoV should not be vacated, then we <br /> respectfully submit that it would be manifestly unjust to <br /> impose a penalty where MCR was proceeding in good faith <br /> under a BAT approved determination by the State of Colorado <br /> and no corrective or other action in relation to past events <br />