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<br />material removed was not overburden, i.e., did not overlie a coal <br />seam, it was not spoil. Thus, Kerr's statement that it used all <br />available "spoil" in backfilling and grading pit No. 1 is not, <br />without more, informative. <br />In any event, nothing in SMCRA, the implementing Federal <br />regulations, or the Colorado program requires that, to determine <br />whether the AOC requirements of section 4.14.1(2)(a) of the <br />Colorado program have been met, OSM must first determine that <br />spoil or other disturbed material is available for reclamation <br />purposes. Thus, whether or not any material was available for <br />AOC is irrelevant to the issue of whether Kerr failed to achieve <br />AOC at pit No. 1 in violation of section 4.14.1(2)(a), as cited <br />in the Federal NOV. <br />Randall Price, environmental protection specialist for DMG, <br />affirmed this point in his testimony: <br />Q [John Retrum, counsel for OSM]: Isn't it true, <br />under the Colorado program, that the availability <br />of spoil material is not a factor in the <br />determination for AOC-- <br />A Yes. <br />Q --where no variance to AOC has been approved by <br />the State? <br />A Yes. <br />Q Your answer to that is yes? <br />A Yes. <br />Tr., 408. <br />Even assuming, for purposes of argument, that Kerr meant to <br />state that it used all available material to backfill and grade <br />9 <br />