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4. The OS?vl violated the mandatory procedures set fotth in its regulations. <br />and incorporated in the Cooperative Agreement, for conducting the May 2~ inspection and <br />issuing the NOV because: <br />a. OSM did not issue a written ten-dav notice to Ketr and the D[vIG: <br />b. Even if the six-dav oral notice was sufficient, OSh1 did not advise <br />the DMG in writing why its response was insufficienC <br />c. OSM deprived the DMG of its right to request informal review of <br />the disagreement with the OSM inspectors by the Deputy Director. <br />~. Kerr was adversely affected by OSM's breach of the Cooperative <br />,Agreement and failure to follow its own mandatory regulations. At great expense and effort. <br />Kerr performed the backfilling and grading in accordance with the plan approved in the Permit <br />by the DMG. Kerr relied upon that plan as defining its backfilling and grading and AOC <br />obligations. By taking preemptive enforcement action, OSM deprived Kerr of the benefit of the <br />ten-day notice and informal review procedures for resolving any differences of opinion between <br />the DMG and OSM regazding whether the Permit complies with the AOC requirements of the <br />approved State program. <br />B. DMG's Determination of AOC Compliance in the Permit Prevails <br />1. The DMG's professional judgment, as the regulatory authority under the <br />approved State program and the Cooperative Agreement, on the subjective question of whether <br />the Permit complies with the AOC requirements of the State program should prevail. <br />2. The definition of AOC set forth in Rule 1.04(13) of the State program <br />does not require exact duplication of the premising surface configuration. Rather, it only <br />requires that the final configuration "closely resemble the general surface configuration ...prior <br />to mining" and "blend into and complement the drainage pattern of the surrounding terrain," with <br />highwalls and refuse/spoil piles removed. <br />3. These requirements inherently involve professional judgment specific to <br />each site which the DMG reasonably applied in approving the backfilling and grading and AOC <br />requirements of the Permit. In such circumstances where no precise, objective standazd exists, <br />the DMG's professional judgment should prevail where (1) the federal land manager finds the <br />result satisfactory, (2) OSM asserts its differing opinion at the enforcement stage, not at the <br />permitting stage, and (3) DMG has been delegated primary responsibility for enforcing SMCRA <br />pursuant to 30 U.S.C.§1273. <br />IJJO-l, NJN+ <br />