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Tena Gallagher and Linda Saunders - K2T LLC <br />Page 3 <br />December 23, 2014 <br />alleging "not to monitor MW -NW would be non - compliance with the Hydrologic <br />Monitoring Plan ". The matter was scheduled for hearing before the Board and the <br />Division, K2T and representatives of the Vento Group commenced a series of conference <br />calls and meetings in an attempt to address K2T/Ventos primary concerns within the <br />Division's and Board's jurisdiction. The K2T/Ventos request for hearing was jointly <br />continued multiple times. In an effort to pursue settlement of the NOV a meeting was <br />held between the Division, K2T/Ventos, and EFCI. Subsequent to the meeting EFCI and <br />K2T/Ventos agreed to indefinitely stay the request for a Board hearing pending the <br />submittal and review of a settlement agreement between EFCI and K2T/Ventos. <br />Unfortunately, the matter has not settled. <br />Relevant Statutory and_ReRulatory Provisions: <br />Pursuant to Section 34 -33 -124 of the Coal Act "any person having an interest which is or <br />may be adversely affected by such notice [of violation] ... or by any modification, <br />vacation, or termination of such notice ... may request review thereof by the Board ... such <br />request for review may include a request for a hearing ... ". Although the requests for <br />hearing submitted by K2T/Ventos never expressly stated the legal authority granting a <br />right to hearing, the Division generously interpreted the e -mail correspondence and <br />concluded that the modification of the NOV was the triggering action constituting the <br />legal basis for K2T/Ventos ability to seek a formal hearing before the Board. <br />Rule 5.03 governs enforcement actions and Rule 5.03.5 governs requests for hearing. The <br />Rules, for the most part, mirror the statutory language and state when an NOV is issued <br />or modified "...any person having an interest which is or may be adversely affected by <br />such [violation] notice or order or by any modification, vacation, or termination of such <br />notice or order may request review thereof by the Board..." In addition, the Rules <br />contain similar language to 32- 33- 124(1)(a) authorizing the Board to "cause an <br />investigation to be conducted by the Division as it deems appropriate, and the Board shall <br />receive the completed report of such investigation before the hearing." <br />The abatement deadline for the NOV is March 27, 2015. It is the Division's position that <br />any Board hearing related to the modified NOV that takes place prior to the expiration of <br />the abatement deadline is not ripe, or is premature. Therefore, this matter should be <br />heard by the Board in due course. <br />Rule 2.08.4 governs technical revisions and specifically governs the process related to the <br />pending TR -43. As outlined above, the Division is in the technical review process and <br />will issue its decision to approve or deny TR -43 in due course. Pursuant to Rule <br />2.08.4(6)(b)(iii), any request for hearing on TR -43 prior to the issuance of the Division's <br />proposed decision is premature. The Divisions will ensure that a copy of its proposed <br />