_GENERAL DOCUMENTS - C1981017 (139)

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Mr. Steven G. Renner 2 DMG responded to violations 3 and 4 of the TDN as one because the violations both address reclamation. AFO understands DMG's response to state that a TDN is unwarranted, or that AFO should find the DMG response to be appropriate because: 1. reclamation of the site has been previously adjudicated by the Mine Land Reclamation Board (the Board), 2. the permit has been revoked, 3. an enforcement action will provide Mid-Continent the opportunity to re- negotiate a compliance schedule, and 4. that given the circumstances, reclamation is proceeding as contemporaneously as practicable. AFO agrees that the Board has previously addressed reclamation of the mine site. The Board approved settlement agreement that, in part, sets forth the schedule for reclamation resulted from a show cause order for a pattern of violations relating to hydrologic balance NOV's. At this time, reclamation of the mine is well behind the dates set forth in the settlement agreement schedule. In spite of being delinquent in reclamation activities before the settlement agreement was negotiated, and, even now being delinquent in reclamation activities under the terms of the settlement agreement, Mid-Continent has never been issued a notice of violation for contemporaneous reclamation. Mid-Continent is in violation of the approved Colorado program and has not complied with a specific Board Order to conduct the required reclamation; since DMG has never cited this violation of its approved program, an enforcement action is required under section 5.03.1(2) of the Colorado regulations. AFO agrees that the permit has been revoked by the Board. This revocation was ordered because Mid-Continent had not complied with the terms of the Board approved settlement agreement which established the reclamation schedule. DMG's and the Board's position at the time of revocation was that Mid-Continent was delinquent in reclamation. The required enforcement action was still not taken at the time of revocation. AFO believes the DMG response to be contradictory with regards to the potential for relitigation of a reclamation schedule. DMG expresses fears that issuance of an enforcement action could open the door to this relitigation, yet DMG also states that the final Board Order requiring reclamation cannot be appealed. While Mid- Continent would have the right of appeal of the enforcement action, the company would also be under the constraints of the unappealable Board Order. Also, if Mid- Continent did appeal the enforcement action to the Board, the Board no longer has the option of establishing a compliance schedule. Colorado Rule 3.04.1(2)(a) specifically prohibits the Board from entering into a compliance schedule with Mid- Continent because of the bankruptcy. Even if the above were ignored, Mid- Continent is not subject to any imposed time constraints for reclamation