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Carol Pahlke <br />December 23, 1980 <br />Page 26 <br />permanent overburden stockpile. It stretches the <br />clear meaning of the words far beyond acceptable <br />bounds to suggest that "removal, if appropriate" was <br />intended to sweep temporary stockpiles within the <br />purview of both Rule 2.05.3(6)(b) and the perfor- <br />mance standards of Rule 4.09. If, in fact, this had <br />been the regulatory intent, the regulations would <br />have clearly stated that this rule was to apply to <br />temporary and permanent overburden stockpiles. <br />Second, even assuming arguendo that Rule <br />2.05.3(6)(b) can be reasonably construed to include <br />tempocary as well as permanent overburden stock- <br />piles, it does not follow that Rule 4.09 likewise so <br />applies. Rule 2.05.3(6)(b) states in relevant part: <br />"descriptions, including appropriate maps, prepared <br />according to the standards of 2.10, in cross section <br />drawings, of the proposed disposal site and design <br />of the spoil disposal structures according to 4.09." <br />Since Rule 4.09 speaks only in terms of disposal of <br />excess spoil and of "all spoil or underground devel- <br />opment waste not required to achieve approximate <br />original contour within the area where such material <br />has been removed...", it cannot fairly be maintained <br />that Rule 4.09 has any application to temporary <br />overburden stockpiles. As it relates to temporary <br />overburden stockpiles, the phrase in Rule <br />2.05.3(6)(b) "and design of the spoil disposal <br />structures according to 4.09" (emphasis supplied) <br />has no application. <br />Although Rule 4.09 has no application to the tem- <br />porary overburden stockpile within the Kerr Permit <br />Area, Kerr Coal will agree to have the stockpile <br />inspected and certified by a Kerr Coal engineer on <br />an annual basis until the safety factor of the over- <br />burden stockpile achieves a 1.5 or better safety <br />factor. However, Kerr Coal cannot accept the <br />current proposal of MLRD that the certification <br />requirements of Rule 4.09 be satisfied. <br />The foregoing narrative responses, together with the <br />attached supplemental materials, constitute a comprehensive <br />and detailed response to each item identified in the <br />December 5, 1980 letter from MLRD to Kerr Coal, or any of the <br />memoranda attached thereto. In light of the rapid depletion <br />