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-2- <br /> It is clear that the limited circumstances which allow the OSM to <br /> issue a NOV by 30 CFR parts 906.30 and 843 do not exist at the <br /> Coal Basin site. The Office of Surface Mining is not conducting a <br /> Federal Program or a Federal Lands Program as defined in the <br /> Surface Mining Control and Reclamation Act (SMCRA) . Neither is the <br /> OSM enforcing a State program under sections 504 (b) or 521 (b) of SMCRA <br /> or part 733 of 30 CFR. <br /> Therefore, the only standard by which a Federal enforcement action <br /> could be contemplated would have been that an imminent danger or harm <br /> had existed at the site. The issuance of a Cessation Order is <br /> certainly contemplated by 30 CFR 843 .11 (a) (1) (i) and 843 .12 (a) (1) . <br /> The inspection report which accompanied the NOV states that the <br /> " . . .rigid requirements for the issuance of an Imminent Harm <br /> Cessation Order could not be sustained at the time of the inspection. ,, <br /> Thus, a cessation order was not issued by the AFO. The inspection <br /> report goes on to state that there is potential for the subject area <br /> to degrade to the point that imminent danger or harm could occur. It <br /> is for this very reason that the OSM should have followed the <br /> procedures outlined in 30 CFR 843 . 12 (2) and in INE-35 by providing the <br /> State with a Ten-Day Notice. This procedure accompanied with the <br /> appropriate documentation would allow the Regulatory Authority, the <br /> State, to take appropriate action as contemplated by SMCRA and the <br /> Federal Regulations. <br /> Based upon the fact that the AFO inspectors failed to follow the <br /> procedures outlined in the Federal Regulations, the <br /> Cooperative Agreement and the OSM Directives, the State of Colorado <br /> requests that the AFO vacate the NOV. Upon vacation of the NOV, the <br /> AFO should issue a Ten-Day Notice to the Division which outlines the <br /> concerns of the OSM inspectors. Immediately upon receipt of the <br /> Ten-Day Notice the Division will take appropriate action to resolve <br /> the concerns. <br /> Please contact me if you have questions or comments. <br /> Sincerely, <br /> Michael B. Long <br /> Director <br /> MBL/ern <br /> cc: Steven Renner <br /> Larry Routten <br /> Doug Larson, WIEB <br /> M: \coal\midcfnov <br />