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_~~•. <br />BEFORE THE <br />UNITED STATES DEPARTMENT OF THE INTERIOR <br />OFFICE OF HEARINGS AND APPEALS <br />HEARINGS DIVISION <br />KERR COAL COMPANY <br />Applicant <br />v. <br />OFFICE OF SURFACE M1MNG <br />RECLAMATION AND <br />ENFORCEMENT, <br />Respondent <br />III IIIIIIIIIIIIIIII <br />999 <br />i~C~C~C~U1~~D <br />0 C T - 7 1994 <br />OF7~7CE OFTHB <br />Docket No. DV 94-12-R '`~7'U~~~.~ <br />Application for Review <br />and Application for Temporary Relief <br />Notice of Violation No. 94-020-352-003 <br />Marr Strip Mine <br />Permit No. C-80-006 (Colorado) <br />KERB COAL COMPANY'S REPLY BRIEF <br />Kerr Coal Company ("Kerr"), by its attorneys, Dufford & Brown, P.C., submits its <br />Reply Brief responding to the Proposed Decision Supporting the NOV submitted by the <br />Office of Surface Mining Reclamation and Enforcement ("OSM"). <br />I. OSM's Analysis of its Authority to Issue the NOV Disregards Provisions of <br />SMCRA and the Cooperative Agreement Which Demonstrate it Had No Such <br />Authority. <br />All parties agree that OSM's authority to issue the NOV without a prior Ten-Day <br />Notice ("TDN") to the Colorado Division of Minerals and Geology ("DMG"), depends <br />on whether OSM was enforcing the Federal Lands Program or only the Colorado State <br />Program during the inspections of the Marr Mine on May 12 and 25, 1994. If OSM was <br />enforcing a Federal Lands Program, then the NOV was authorized by 30 C.F.R. § <br />lOaAal. /dv9~ <br />