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iii iiiiiiiiuiuiii 999 M E M O R A N D U M T0: David C. Shelton, Conference Officer FROM: Carol Pahike RE: Assessment Conference, NOV 80-29 Fiatiron Paving Co.; Bourg Coal Strip Our File: 979-125 DATE: September 9, 1980 As part of the record for the assessment conference held on September 8, 1980, I would like to summarize my position relative to NOV 60-29: Section 34'33-120(2)())(1!)(8) of the Act (CRS 1973, 34-33-101 et. seq.) requires chat siltation structures ba constructed "prior to commencement of surface coal mining operations". Although language in the regulations implementing this section have added the common sense exclusion that the pond site Itself may be disturbed prior to completion of the pond, this is not the issue here. The topsoil salvage and associated disturbances at the mine do not constitute disturbance of a pond site, and were not, in my opinion, strictly limited to disturbance necessary to obtain borrow material for the embankments. Page OSM 23R of the permit specifically states that "Ponds A and B will be constructed prior to any other disturbance," and Is a direct response to my latter of November 21, 1979, explaining that this is required. It is Flatiron's responsibility Lo comply with their plan. If they comsltted in the plan to something which they did not actually intend to do, it was their responsibility to come In and change the plan. Although the approved pian did not specify the source of material for embankment construction, this Is true of most plans approved by this office to date. We are perhaps somewhat at feu n for failure to recognize a potential Inconsistency in the plan, however, the basic responsibility for the plan again remains with Flatiron. 4. Although Flatiron contends that material from the knoll was more suitable for embankment construction than materiel at the pond site, no evidence was provided to support this claim (soli analyses. testimony of an engineer, etc.).