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<br />118361, 11/U8~ <br />(a) OSM assigned l4 of a possible 15 points for probability of <br />occurrence in the proposed assessment, which was affumed after the <br />conference. This was based on the allegation that the land had not <br />been restored to its capabilities prior to mining and the post-mining <br />land use has been delayed. To the contrary, the post-mining <br />capabilities of the land have been fully restored by the backfilling <br />and grading work performed by Kerr on the lands in question. In <br />addition, any delay in the post-mining land use results solely from <br />the NOV precluding Kerr from spreading topsoil and reestablishing <br />vegetation until the validity of the NOV is determined. Finally, <br />Kerr's Permit No. C-80-006 allows Kerr until 1999 to complete <br />backfilling and grading to achieve approximate original contour <br />("AOC") and restoration of the post-mining land use. There has <br />been, therefore, no delay in restoring the land to its pre-mining <br />capabilities or post-mining land use under the Permit. As a result, <br />zero points should be assigned because there is no probability that <br />the event which the AOC standazd is designed to prevent will occur. <br />(b) OSM assigned eight points for the extent of actual or potential <br />damage in the proposed assessment, which was affumed after the <br />conference. This was based on the conclusion that runoff patterns <br />and watershed sizes outside the permit area have been altered. But, <br />OSM alleges no damage or adverse impact to the environment or the <br />public as a result of these changes. Indeed, there is no such damage <br />or impact. Accordingly, the points for this element of the <br />assessment should be reduced to zero. <br />(c) After the conference, OSM increased the points for negligence from <br />11 to 22. The basis for this number was OSM's conclusion that Kerr <br />had the responsibility to know the requirements of the AOC standard <br />in the Colorado State Program and to reclaim the disturbed area in <br />accordance with those standards. OSM disregarded, however, the <br />undisputed fact that Kea reclaimed the disturbed area in question <br />substantially in compliance with the backfilling and grading and <br />AOC requirements of its Permit, as approved by the Colorado <br />Division of Minerals and Geology ("DMG") which is the regulatory <br />authority. OSM's disagreement with the DMG regarding the <br />interpretation of the State AOC standard does not support a fording <br />2 <br />