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been approved by the state regulatory authority at the time of OSM's <br />earlier inspection. <br />(5) OSM's primary reason for alleging an AOC violation was that the <br />pre-mining land form was not replaced in essentially the same form <br />at the same location, while the state regulatory authorities evaluated <br />AOC compliance by considering the entire permit area. <br />(6) The state regulatory authorities applied a "functional" test in <br />evaluating AOC compliance. They evaluated the stability of the <br />fmal surface configuration, its ability to support compatibility with <br />the approved post-mining land use, whether it blended with and was <br />comparable to the surrounding terrain, and whether it created <br />positive, unobstructed drainage. Both ALJs upheld this approach to <br />evaluating AOC compliance despite significant changes in the post- <br />mining topography and elevation compared with the pre-mining <br />surface configuration, particularly in the Consolidation Coal case. <br />(7) Both ALJs concluded that the state regulatory authorit~s conclusion <br />on AOC compliance should be deferred to and upheld despite OSM's <br />disagreement. <br />V. CONCLUSION <br />For these additional reasons, Kerr respectfully requests that its Proposed Decision, <br />be adopted as the decision in this case. <br />~o3aai. ~avv~ <br />