_GENERAL DOCUMENTS - C1981017 (135)

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P�lT NT OF lyF r0 A United States Department of the Interior a OFFICE OF SURFACE MINING CH 3 sa°9 Reclamation and Enforcement 4�'ashington,D.C.20240 AUG 2 3 !�',4 Mr. Steven G. Renner W G 2 91994 Coal Program Supervisor Division of Minerals and Geology Department of Natural Resources 1313 Sherman Street, Room 215 Denver, Colorado 80203 Dear Mr. Renner: Thank you for your letter of May 2 requesting informal review of the Albuquerque Field Office (AFO) Director's April 21 determination that the Department of Natural Resources (DNR) did not take appropriate action with respect to ten-day notice (TDN) number 93-02- 244-02, Mid-Continent Resources, Inc., permit number C-81-017, in that the violation cited in the TDN continued to exist and had not been properly addressed by the DNR. The violation alleged in the TDN is a failure to minimize erosion as necessary to provide protection for topsoil, vegetation, fish and wildlife, and the hydrologic balance. In your request for review of the AFO's most recent April 21 finding, you provided the following explanations. First, the enforcement actions taken in response to the TDN were vacated after a State assessment officer recommended vacation because DNR had not produced evidence at the assessment conference as to whether the violation existed. Second, DNR is presently pursuing alternative enforcement actions in the form of a personal liability suit against the owners and controllers of the permittee for their failure to comply with another action of DNR. Third, if DNR is successful in its alternative enforcement case and reclamation is achieved, the violation alleged by the TDN will be abated. Fourth, the Office of Surface Mining Reclamation and Enforcement's (OSM) Directive INE-35 supports the position that an appropriate response to a TDN may include other actions specifically approved in the State program in lieu of enforcement action. According to DNR's letters, on January 11, 1994, the assessment conference officer recommended that the Notice of Violation (NOV) issued by DNR be vacated because "the Division had no pictures or other evidence of a violation." DNR subsequently vacated the NOV. No explanation has been provided by DNR for its failure to introduce evidence at the hearing to support the existence of the violation or for its decision to accept the assessment officer's recommendation to vacate the NOV. The documents before me do not dispute the fact that the violation exists. DNR has stated that the violation will be abated if it is