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<br />requires that DMG must consider information submitted by the operator in <br />determining the facts and/or its interpretation of the Rules or Act related to the NOV. <br />Implicit in this authority of DMG to consider the facts or the law as presented by the <br />operator "surrounding the violation", is the assumption that, if the operator convinces <br />DMG that DMG's representative was wrong about the "facts" or the "law" that gave <br />rise to the issuance of the NOV, DMG has the regulatory duty and authority to vacate <br />the NOV. <br />Rule 5.04.3 clearly contemplates that DMG has the authority to vacate an NOV at an <br />Assessment Conference. Rule 5.04.4(1) gives the operator the right to appeal the <br />recommendation of the Assessment Conference hearing officer to the Director, DMG <br />and his subsequent decision to the Board "in accordance with 5.03.5". Rule 5.04.4(2) <br />authorizes the Board to "consolidate such hearing with other proceedings under <br />5.03.3 [the Rule invoked by Basin in this case]". By reading these Rules together and <br />in a manner that gives effect to each portion of the Rule, as the Board is required to <br />do, see Farmers Group, above, it is obvious that these Rules establish a procedure <br />that authorizes DMG to vacate an NOV, after a request for a Board hearing by the <br />operator under Rule 5.03.5(1)(a), at the Assessment Conference or thereafter prior to <br />the Board hearing under Rule 5.03.5(1)(a) and that any appeal of the decision that <br />comes out of the Assessment Conference is to be combined with the original hearing <br />requested by the operator under Rule 5.03.5(I)(a). See, for example, Rule <br />5.03.5(1)(c) which expressly provides a mechanism for the operator to ask for a <br />hearing by the Board for any penalties still in effect as a result of the Assessment <br />Conference. <br />Moreover, as set forth in the Assessment Conference Rules, it has been longstanding <br />DMG policy and practice to attempt to settle NOV's through Assessment <br />Conferences prior to any Board hearing, even if the operator has already asked for a <br />Board hearing on the NOV issuance. See affidavit of David Berry (Berry Affidavit), <br />attachment 1, paragraphs 9-11. Indeed, that is exactly what happened in this case. <br />After Basin asked for a Board hearing on the NOV under Rule 5.03.5(1)(a) on <br />November 13, 2000, thirteen days after the NOV issuance by DMG, Basin <br />participated in an Assessment Conference with DMG on January 9, 2001, at which <br />Basin's attorney asked that the NOV be vacated. See Berry Affidavit, paragraphs 8, <br />11. It is not uncommon for a coal operator who has received an NOV to participate, <br />as Basin did here, in an Assessment Conference as provided in the Rules and attempt <br />to persuade DMG to vacate the NOV either factually, as a matter of law, or for some <br />other reason. At times the operator requests and DMG holds these Assessment <br />Conferences after the operator has asked for a Board hearing under Rule 5.03.5(1)(a). <br />Berry Affidavit at paragraph 10. <br />Without the ability to hold Assessment Conferences at any time prior to a Board <br />hearing on an NOV, the Assessment Conference procedures are largely meaningless. <br />To give effect to the Assessment Conference Rules, the Board must recognize that <br />DMG has the authority, among other things, to vacate an NOV at these conferences. <br />