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Berry, David
<br />w fc
<br />72-6/
<br />From: Chris Kamper [CKamper @cksmb.com]
<br />Sent: Wednesday, October 05, 2011 11:16 AM
<br />To: Berry, David
<br />Cc: Chris Mcanany; jeff.fugate @state.co.us; kwalker @osmre.gov; Lance Wade
<br />(rlwade @wfcnucla.org)
<br />Subject: RE: Western Fuels Colorado, LLC
<br />David,
<br />Per your request, this email will respond to the comment set forth in the email below (the "Comment ") concerning TR-
<br />61, which Western Fuels— Colorado LLC ( "WFC ") submitted on September 30, 2011. The Commenter, Chris McAnany, is
<br />an attorney who represents Frank Morgan, Mary Lou Morgan, Mike Morgan, and JoEllen Turner. TR -61 contains a
<br />sampling and analysis plan ( "SAP ") requested by DRMS on August 8, 2011. Though this response is directed to DRMS, I
<br />am copying OSM and the Commenter because both were copies on your request to me. I am also copying Lance Wade
<br />on this communication.
<br />As stated by the Commenter below, the substance of the Comment is that WFC has allegedly been moving topsoil to the
<br />"bench one stockpile" on the Morgan property, with the alleged purpose of trying "to influence the results" of sampling
<br />to be conducted on the Property. The Comment claims that WFC has engaged in a pattern of "conceal[ing] information
<br />from regulators" and intends to "cheat" in the implementation of the sampling and analysis contemplated by TR -61.
<br />Based on this "concern," the Comment suggests numerous revisions to TR -61. For purposes of this response, we assume
<br />the bench one stockpile referenced in the Comment is the Bench 1 stockpile shown on Map 2.05.4 -6 Morgan Property
<br />Topsoil Replacement Plan as of June 2010 contained in PR -06 as approved by the DRMS and the MLRB.
<br />Ordinarily, technical comments would be forwarded to WFC's technical consultants (Key Agricultural Services, Inc.
<br />( "KeyAg "), Aaron DeJoia, certified soil scientist, Professor Bob Dunker of the University of Illinois Crop Sciences and
<br />Education Center, and permit engineers Greg Lewicki and Associates) for a response. However, it is good practice going
<br />forward to send comments to counsel for response, because I can obtain the input of mine staff and technical
<br />consultants as needed and act as a central point of contact for the DRMS. Technically meritorious comments will
<br />certainly elicit a response from WFC's technical team. In this instance, I prepared this response after speaking with
<br />Lance Wade, Mine Manager of the New Horizon Mine, who reviewed mine records, interviewed mine employees, and
<br />acquainted me with the results of an unannounced DRMS inspection that took place during what appears to be the
<br />relevant time period, to the extent that can be determined. In addition, while we determined that no particular
<br />technical expertise was required to respond to the Comment, we are forwarding it to our technical team for further
<br />evaluation.
<br />Based on the foregoing, WFC's response is as follows.
<br />1. Alleged attempt to "influence results" of sampling:
<br />First, the Comment misstates the bench one materials to be sampled under TR -61. The bench one stockpile will not be
<br />sampled in the SAP as proposed in TR -61. However, Bench One Suitable Subsoils already redistributed in partially
<br />reclaimed areas will be sampled. This is because bench one materials from the stockpile, under PR -06 as written, will
<br />not be used as topsoil or subsoil on the Morgan property. Rather, those materials are headed for the deeper layers of
<br />the pit.
<br />As a result, even if it were true that WFC were moving topsoil to the bench one stockpile (which it is not), such action
<br />would not "influence the results" of the sampling as the Comment claims because there will be no results from that
<br />stockpile to influence. The factual allegations of the Comment, even if true, are therefore irrelevant. For the
<br />information of the agencies, and clarification if any is needed, the map attached to TR -61 shows the piles to be sampled
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