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t <br /> Mr. Steven G. Renner 2 <br /> The documents provided for my review do not dispute that a violation exists. DNR has <br /> stated that the violation will be abated if it is successful in its attempts to obtain reclamation <br /> through alternative enforcement actions being pursued in another case involving this permit. <br /> At the time the NOV and its subsequent FTACO were issued, the permit for this mine had <br /> been revoked. DNR subsequently forfeited the performance bond and then vacated the <br /> FTACO as a result of evidence presented in the assessment conference. DNR has provided <br /> no information to indicate that the underlying violation never existed, had been abated, or <br /> that the abatement date for the NOV was ever extended. <br /> Section 5.03.2(2)(a) of the Colorado program requires that the authorized representative take <br /> immediate enforcement action wnen it is determined that a violation exists. Section 5.03.2(3) <br /> of State's regulations requires that an FTACO be issued for failure to abate an NOV within <br /> the time originally fixed or subsequently extended. In this case, once the permittee failed to <br /> comply with the cessation order to abate the violation in the most expeditious manner <br /> possible, the only appropriate action would have been for the DNR to proceed with <br /> alternative enforcement action against the permittee for failure to comply with the cessation <br /> order. <br /> DNR's interpretation of OSM Directive INE-35, paragraph 3.d.(2), is incorrect. The last <br /> sentence in this paragraph explains that an action other than an enforcement action can only <br /> be considered appropriate if the approved program specifies that the alternative action has <br /> been approved in the State program in lieu of issuing a violation. I am unaware of any <br /> provision of the Colorado program, including State statute 34-33-123(12), that allows some <br /> other alternative enforcement action to be taken in a situation which would clearly first <br /> require issuance of a violation. Under the Colorado program, alternative enforcement is <br /> taken after it has been determined that the permittee has failed to abate violations issued by <br /> the regulatory authority. Alternative enforcement is not appropriate if taken in lieu of <br /> standard enforcement actions. <br /> I have carefully evaluated the record before me and have concluded that the State has not <br /> demonstrated good cause for not taking the enforcement measures required under the <br /> Colorado program to cause the violation to be corrected. Accordingly, I hereby affirm the <br /> determination of the AFO Director and order a Federal inspection of this permit, with <br /> appropriate enforcement action to be taken if it is determined that the violation still exists. <br /> Sincerely, <br /> Ed Kay <br /> Deputy Director <br />