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(July 28, 1994); BHP Petroleum (AmericasLnc. v. OSM. Docket No. DV 93-11-R <br />(September 26, 1994) (copies attached at Tabs 3 and 4).' <br />Ken recognizes that these decision do not have the precedential weight of IBLA <br />or judicial decisions. Rather, Kerr submits them for the persuasiveness of their analysis, <br />particulazly in applying the criteria of Directive INE-26 to similar factual situations. <br />(Consolidation Coal at l 1-14); (B~ at 3-6). <br />Kerr submits that the analysis presented in these cases demonstrates the validity of <br />its position in reliance on Directive CNE-26 on the AOC compliance issue. These cases <br />have the following points of similarity to the facts of this case and provide the proper <br />framework for a decision in Ken's favor here: <br />(1) The operators backfilled and graded the disturbed azeas to a surface <br />configuration in accordance with the permit terms approved by the <br />state regulatory authority. <br />(2) The state regulatory authority concluded that the surface <br />configtuation meets the AOC standazd, while OSM disagreed and <br />expressed its disagreement by issuing NOVs. <br />(3) The AOC definition used in each case derived from Section 701(2) <br />of SMCRA, 30 U.S.C. § 1291(2), and that AOC defmition was <br />applied whether through the interim regulations in )~ or an <br />approved state program in Consolidation Coal and in this case. <br />(4) OSM's objections to compliance with AOC were raised after prior <br />OSM inspections of the mine in which OSM raiseri no AOC <br />objections, even though the fmal backfilling and grading plan had <br />'Ken's counsel was unaware of these decisions when its Proposed Decision was <br />submitted on September 20, 1994. Kerr's counsel faxed copies to OSM's counsel upon receiving <br />clear copies of them on September 26 (Consolidation Coal Co.) and on September 30 (lam). <br />Kerr's counsel also indicated to OSM's counsel that Kerr expected to submit these decisions for <br />consideration in this case. <br />m3ea~, ~avvi 1 <br />