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,~ ,. <br />Mr. Thomas E. Ehmett <br />August 17, 1994 <br />Page 2 <br />amount of acres in a subdrainage basin near the mined area. <br />However, as Mr. Long pointed out, there is absolutely no change in <br />the overall drainage patterns in the area. <br />Mr. Long made several points in our meeting as to why the <br />direct federal Notice of Violation was ill-advised in this case. <br />The legal nuances surrounding this question will be decided in the <br />litigation process. However, we too believe the federal NOV was <br />ill-advised because it has resulted in a very significant <br />distortion of the case by focusing the question of whether or not <br />approximate original contour ("AOC") was achieved for the mine in <br />its entirety on a very small portion of the mined/reclaimed <br />acreage. <br />The mine site reclaimed by Kerr was comprised of 300 plus <br />acres, of which approximately 39 acres on the northerly end of the <br />mine site is federal ground. In linear terms, the mine site <br />extended approximately 1.9 miles and the federal ground is some <br />1200 feet or .23 miles. As we discussed, because of our inability <br />to complete the entire mine plan due to market and other <br />circumstances, the State, in 1990, approved the best overall <br />reclamation plan that could be achieved for all of the 300 acres. <br />Kerr has implemented that plan, which eliminated all highwalls and <br />utilized all available overburden. <br />As Mr. Long pointed out, the only aspect of the entire <br />reclamation plan that has been brought to focus under the NoV, is <br />whether the elevational change in the 1200 feet of federal ground <br />meets AOC. This elevational difference was only one issue the <br />State had to deal with in considering and approving a reclamation <br />plan for the entire mine site. Under the guise of the direct <br />federal NOV, the inspectors, the solicitor's office, and the <br />administrative law judge have all decided to consider these <br />elevational differences in a vacuum by refusing to consider the <br />reclamation plan for the entire mine site as approved by the State <br />of Colorado in 1990 (not approved "post-facto" as the Notice <br />asserts). While the legal correctness of this view will be <br />decided by the litigation, from a practical perspective, it seems <br />to Kerr that if OSM is in fact exercising oversight, then that <br />oversight should utilize the same facts that faced the State and <br />Kerr in 1990, not, as is the case in this proceeding, distort the <br />situation by treating the comparatively small federal lands <br />portion of the overall mine/reclamation site as the only lands <br />involved. <br />With the expiration of temporary relief on August 23, 1994, <br />this situation is about to become even more egregious. Under the <br />NOV, Kerr is being ordered to begin moving material into Pit 1 to <br />achieve some currently undefined version of AOC. OSM's position <br />