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violations by DRMS, and it was operating under its permit as it then existed. <br />Those claims are unavailing because, as the above quoted language makes clear, <br />DRMS "shall not issue the permit" if WFC is in violation of the Act (which is <br />defined as SCMRA —Rule 1.04(3)). If a violation exists, the permit cannot be <br />issued, regardless of whether or not the operator has been cited for a violation. <br />Inaction or carelessness by the regulator accords no defense. <br />It is undisputed that a positive determination as to the presence of prime <br />farmland soils was made in February, 2008. Likewise, it is undisputed that prior to <br />that time WFC had been operating under a permitting regime from DRMS that <br />assumed prime farmland soils were not present. Thus, all of the procedural and <br />substantive requirements for permitting and operation on prime farmlands were not <br />being implemented while the first 51.8 acres of the Morgan Property were being <br />mined. For example, prime farmland topsoil strata were comingled, in violation of <br />Section 120 of the Act. See also Rule 4.25 (1) and (2)(requiring A and B horizon <br />segregation, unless it is proven that other materials will have greater productive <br />capacity). Prime farmland topsoils were not preserved for reclamation, and instead <br />were carted off to other properties. This resulted in topsoil being of insufficient <br />22 <br />