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14. Ivtessrs. Rathbun and Porter returned to the Mine for the stated purpose of <br />completing the bond release inspection on May 2~. 1994. They issued the NOV, a copy of which <br />is attached hereto as Exhibit A, to Kerr at that time. The NOV applies only to the part of Pit 1 <br />within the Federal Coal Lease and alleges a violation of Colorado Rule 4.14.1(2)(a) for failure to <br />return disturbed areas to the approximate original contour. It requires work be commenced to <br />abate the alleged violation by June 6. 1994, and to be completed by Julv 25, 1994. <br />I ~. On or about May 26, 1994, Ivfr. Porter issued Ten-Da}• Notice No. 94-020- <br />3~2-002 to the DbiG, alleging the same violation of the non-federal portion of Pit I. <br />[[. GROUNDS FOR CONTESTING THE NOV <br />A. OSM Lacked Authority to Issue the NOV <br />Under ¶19 of the Cooperative Agreement, 30 CFR §906.30, OSM may <br />take enforcement action as a result of ajoint inspection with the DMG where the two agencies <br />fail to agree on the propriety of enforcement action. Pazagraph 19 states, however, that OSM's <br />enforcement action "shall be taken using the procedures and penalty system contained in 30 CFR <br />parts 843 and 845." <br />2. Section 843.12(a)(2) sets forth the applicable procedures in this case. <br />Since no imminent danger or harm is involved, that regulation requires OSM to: <br />a. Give Kerr and the DMG a written report of the alleged violation <br />and DMG ten days to respond; <br />b. Before reinspecting and issuing an NOV, to follow the procedures <br />of30 CFR §842.11(b)(1)(iii); <br />c. Under subsection 842.11(b)(l)(iii), to advise the DMG in writing <br />why its response to the ten-day notice is inappropriate and to allow the DMG five days after <br />receipt thereof to seek informal review by the Depury Director. <br />3. Section 842.11(b)(I)(iii)(B) states that "no Federal inspection action shall <br />be taken or notice of violation issued regazding the ten-day notice until the time to request <br />informal review ...has expired or, if ...requested, until the Deputy Director has completed <br />such review." <br />l»0-I b"~.9J 4 <br />