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Michael B. Long, Dtrector <br />September 1, 1994 <br />Page 3 <br />The State's enforcement interest would be adversely affected by decisions <br />upholding OSM in all of the proceedings resulting from the NOV issued to Kerr on <br />May 25, 1994. The first case is Kerr's Application for Review of the NOV in Docket <br />No. DV 94-12-R which is pending before Judge Child. Initial briefs are due on <br />September 20, 1994, with reply briefs due on October 5, 1994. The second is Ken's <br />appeal to the IBLA in IBLA No. 94-779, from Judge Child's denial of temporary relief. <br />Ken has requested expedited interim temporary relief and intends to file a reply to OSM's <br />enclosed Brief shortly. Kerr's full brief on the appeal is due on September 14, 1994. <br />Decisions in favor of OSM in three other potential cases resulting from the NOV <br />also would be adverse to the State's enforcement interest. The first will be an Application <br />for Review of the Cessation Order issued on August 24, 1994, which must be filed by <br />September 23, 1994, unless interim temporary relief is granted effective August 23, 1994, <br />thereby vacating the CO. Second is the assessment conference with OSM on the civil <br />penalty proposed for the NOV, which is tentatively scheduled for 10:00 a.m. <br />September 12, 1994. As you know, OSM accused the DMG of gross negligence and <br />reckless conduct, and of approving the AOC provisions of Kerr's permit ~X ~ facto in <br />that assessment. An appeal of the final assessment after that conference is likely. The <br />third potential proceeding is an appeal of any individual civil penalties imposed on Ken's <br />officers if Kerr does not start to move spoil into Pit 1 from somewhere by September 23, <br />1994. <br />III. State Permitting Authority Threatened <br />A. Abatement Req~i er ments. <br />The State's second interest which will be adversely affected by decisions favorable <br />to OSM concerns the DMG's permitting authority. OSM has taken the position that the <br />abatement actions specified in the federal NOV override any contrary provisions in Ken's <br />permit approved by the DMG. Further, OSM asserts that Kerr need not, and cannot take <br />the time, to submit plans for permit revisions for the DMG's approval before proceeding <br />with the federal abatement actions by the deadlines set in the NOV. In other words, the <br />Federal abatement specifications nullify the State-approved permit and the State's <br />permitting authority concerning AOC at Ken's mine. <br />3JE]-/, 831/91 <br />