Laserfiche WebLink
<br />Because the Act and the Rules expressly contemplate that DMG may vacate NOV's <br />after issuance and before any Boazd hearing, even if the hearing is requested prior to <br />the request for or holding of an Assessment Conference, the Boazd must give effect to <br />these express statutory and regulatory provisions. Conversely, the Rules do not <br />provide, either expressly or by implication, as the Board's counsel apparently <br />believes, that, after an operator requests a hearing before the Boazd, DMG or the <br />operator, either singly or jointly, must file with the Board a motion to dismiss after <br />an Assessment Conference if a resolution is reached regarding the vacation, <br />modification, or termination of an NOV. Rather the Rules contemplate that the Boazd <br />hearing will not occur if the operator and DMG have reached an agreement on the <br />NOV or the operator does not ask for appellate review of the DMG decision resulting <br />from the Assessment Conference. <br />These detailed Assessment Conference Rules, the statutory provisions establishing <br />these procedures in the Act, and the longstanding policy and practice of DMG to hold <br />Assessment Conferences in an attempt to settle disputes on NOV's with operators <br />would be seriously compromised, if not destroyed, by the interpretation apparently <br />proposed by the Board's counsel in this case. If the Board wishes to deny DMG the <br />authority to vacate, modify, or terminate an NOV at the Assessment Conference, then <br />the Board should change the Rules to expressly provide that any time a hearing is <br />requested by an operator after DMG issues an NOV, DMG has no authority to vacate, <br />modify, or terminate the NOV either at an Assessment Conference or otherwise.. <br />Finally as a policy matter, this Board must ask itself whether it really wants to <br />interject itself into every NOV issuance by the coal program for which an operator <br />has initially asked for a hearing when there is a possibility that the NOV may be <br />resolved by DMG short of a Board hearing or Board action. In addition, the Board <br />must consider whether it really desires to constrain DMG's enforcement discretion in <br />a way that removes an important resolution mechanism that has been employed <br />successfully by DMG's Coal Program and which coal operators have successfully <br />invoked for vacations of NO 's y MG fo a umber of years. <br />~ ~n <br />STEP N BROWN <br />COUNSEL FOR DMG <br />