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STATE OF COLORADO MINED LAND RECLAMATION DIVISION oF;~~<o Department of Natural Resources ~~:,-~ 1313 Sherman St., Room 215 ~e~~$ Denver, CO 80203 '~~+ 303 866-3567 "ig 76' FA X: 303 832-8106 Roy Romer, Governor Fretl R. Banta. O~vision Oiregor August 1, 1991 Mr. W. Hord Tipton Deputy Director, Operations and Technical Services Office of Surface Mining and Enforcement 1951 Constitution Avenue Washington, D.C. 20240 RE: Ten Day Letter X-91-02-370-003-Informal Review Response, New Elk Mine-(Permit C-81-012) Dear Mr. Tipton: On July 29, 1991, the Colorado Mined Land Reclamation Division (CMLRD) received the Office of Surface Mining (OSM) response to our Informal review request regarding Ten-Day letter (TDL) X-91-02-370-003 TV4. The TDL alleges that Wyoming Fuel Company failed to design certain structures as sediment ponds. The OSM response of July 23, 1991 states that "To settle the issue in this case, it 1s not necessary to resolve the question of whether the structures referenced in the TDL are sediment ponds." The OSM response concludes by ordering a federal inspection to assess compliance with the Colorado rules pertaining to both sediment ponds and impoundments. Based upon the wording in the OSM response, and upon a conversation with Gary Fitz of the Albuquerque Field Office (AFO), it is our understanding that an enforcement action will be taken by the OSM, if such an action is not pursued by our agency. We agree that an additional inspection is warranted; however, the processes outlined in INE-35 seem to indicate that a new Ten-Day Letter should be issued. Issuance of a federal violation, based upon an alleged failure to design structures in accordance with the Colorado impoundment regulations (Rule 4.05.9), would bypass this agency's right to address the issue as a permit defect. The appeal process thus far has been based upon a specif is Ten-Day Letter citation. The TDL cited Rule 4.05.6 of our regulations, and our subsequent appeal was based upon that specific citation. The July 23, 1991 OSM finding does not address the validity of the arguments presented in our letter of June 12, 1991. Rather, the OSM response changes the emphasis of the discussion to a new performance standard issue. Specifically, the emphasis changes from sediment pond definitions and performance standards to impoundment definitions and performance standards. The two areas are very different, and we have not been provided the opportunity to address the new OSM concern.