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that Kerr was guilty of a greater degree of fault than negligence. <br />Indeed, by complying with its Permit, Kerr was not negligent at all, <br />and any violation was inadvertent at most. Accordingly, zero points <br />should be assessed for negligence. <br />4. For the reasons stated above, the assessment formula was misapplied. The <br />points assigned should be reduced to zero and the civil penalty assessment should be <br />reduced to the same amount. <br />5. Tendered herewith for deposit into escrow is Kerr's Check No. 002282 <br />dated November 1, 1994, in the full amount of $2,400.00. <br />6. Kerr requests a hearing on this matter in Denver, Colorado. Kerr does not <br />object to consolidation of this case with Docket No. DV 94-12-R, but it does raise <br />additional factual issues which were not presented in that case. Accordingly, a <br />supplemental hearing will be required. <br />Dated: November 1, 1994. <br />Respectfully submitted, <br />DUFFORD & BROWN, P.C. <br />. i~. <br />/ , / ~ <br />Richazd L. Fanyo <br />1700 Broadway, Suite 1700 <br />Denver, CO 80290-1701 <br />Phone: (303) 861-8013 <br />Attorneys lbr Kerr Coal Company <br />IIHf61, ILUPI <br />