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to issue the NOV directly to Kerr without first giving a written <br />ten-day notice to the DMG. This question necessarily requires a <br />determination about whether, where there is an approved program <br />in which the state is to regulate mining operations on federal <br />land, OSM may take direct enforcement action without first satis- <br />fying the procedures to allow the state to act on any alleged <br />violation. <br />Under the cooperative agreement entered by OSM and DMG, the <br />DMG was given primary authority to regulate mining operations <br />located on federal lands. 43 C.F.R. 906.30; SMCRA 523(c}. OSM <br />acknowledges the state's primacy role over such operations. (OSM <br />brief at p. 10). <br />Article VIII, paragraph 19 of the cooperative agreement <br />specifies the residual enforcement authority of OSM over mining <br />operations within the state and provides as follows: <br />During any inspection made solely by OSM or <br />any joint inspection where the {DMG} and <br />OSM fail to agree regarding the propriety <br />of any particular enforcement action, OSM <br />may take any enforcement action necessary <br />to comply with 30 CFR parts 843 and 845. <br />Such enforcement action shall be based on <br />the performance standards included in the <br />regulations of the approved Program, and <br />shall be taken using the procedures and <br />penalty system contained in 30 CFR parts <br />843 and 845. <br />Part 843.12 of 30 C.F.R. has two provisions regarding what <br />-6- <br />