1979-06-22_ENFORCEMENT - M1978352

• Permit No: M1978352
• IBM Index Class Name: Enforcement
• Doc Date: 6/22/1979
• Doc Name: REPLY BRIEF OF DEFENDANTS WILLIAM E NOTTINGHAM JR & NOTTINGHAM SAND & GRAVEL CO & MEMORANDUM BRIEF I
• Media Type: D
• Archive: No

Plaintiffs apparently seek to avoid application of the
exhaustion rule by arguing that they were barred from re-
questing a hearing on the question of notice because the
time for hearing requests had expired on or about February
21, 1979. This argument' s lack of merit is demonstrated by
the fact that the undisputed facts, together with affidavits
submitted by the Plaintiffs themselves demonstrate that
Plaintiffs had notice of the pending Nottingham application
well in advance of February 21, 1979. See, Section III, infra.
In fact, Plaintiffs submitted a letter of objection to the
application on February 16 , 1979. (See, Affidavit of Mark A.
Heifner, Exhibit 1) . Plaintiffs have offered no explanation
for their ability to submit a letter of objection, yet not
request a hearing on those objections.
In addition, Plaintiffs could have requested a hearing
on the alleged notice deficiency at least up until the time
of the March 1, 1979 Board meeting. Specifically, Rule 1 .24
of the Rules and Regulations of the Mined Land Reclamation
Board (hereinafter, "Rules and Regulations") provides that
"Any interested person may request in writing a meeting or
hearing concerning . . . alleged violations of the Act or
these rules There is no time constraint for the
submission of a hearing request concerning an alleged viola-
tion of the Act under Rule 1. 24 , and it is presumably Plain-
tiffs' position that the notice question which forms the
basis for their request for judicial review represents a
violation of the Act.
Finally, Plaintiffs' intimation that the submission of
a hearing request would be futile represents mere specula-
tion which is devoid of any factual support. The submission
of a proper hearing request serves to underscore for the
Board the gravity of an objector' s concerns. Further, the
Board is obligated to handle such a request in accord with
a specific regulatory procedure, thereby emphasizing its
importance. Consequently, failure to submit a request is
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