_GENERAL DOCUMENTS - C1981017 (135)

Home Browse Search

} Mr. Steven G. Renner 2 successful in its attempts to obtain reclamation through alternative enforcement actions being pursued in another case involving this permit. DNR's interpretation of OSM Directive INE-35, paragraph 3.d.(2), is incorrect. The last sentence in this paragraph explains that an action other than an enforcement action can only be considered appropriate if the approved program specifies that the alternative action has been approved in the State program in lieu of an enforcement action. Section 5.03.2(2)(a) of the Colorado regulations requires that the authorized representative take immediate enforcement action when it is determined that a violation exists. In your letter you cite a State statute at 34-33-123(12) as providing for alternative enforcement measures. I am unaware of any provision of the Colorado program, including State statute 34-33-123(12), that allows some other alternative enforcement action to be taken in a situation which would clearly require first the issuance of an NOV and then a Failure-to-Abate Cessation Order. Under the Colorado program, alternative enforcement is taken after it has been determined that the permittee has failed to abate a violation issued by the regulatory authority. Alternative enforcement is not appropriate if taken in lieu of standard enforcement actions. I have carefully evaluated the record before me and have determined there is a reasonable basis to conclude that a violation exists and that the State has not demonstrated good cause for not taking the enforcement measures required by its program to cause the violation to be corrected. Accordingly, I hereby affirm the determination of the AFO Director and order a Federal inspection of this permit, with appropriate enforcement action to be taken if it is determined that the violation still exists. Sincerely, /A Ed Kay Deputy Director