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Michael B. Long, Director <br />September 1, 1994 <br />Page 4 <br />The State's interest in preserving the DMG's permitting authority over Federal <br />NOV abatement actions is threatened by the NOV review proceeding pending before <br />Judge Child, Kerr's appeal of the denial of temporary relief to the IBLA, and any appeal <br />of the CO issued on August 24, 1994. The State's interest will be threatened by the NOV <br />we expect OSM to issue on the non-federal lands in Pit 1 as a result of the Deputy <br />D'irector's denial of the DMG's TDN appeal. It probably will be adversely affected by the <br />penalty assessment for the original NOV and the potential personal liability claims as <br />well. <br />B. AOC Interpretation and Reliability of State Permits. <br />A third State interest which will be adversely affected is the DMG's interpretation <br />of the AOC standazd requiring the final land configuration to have stable slopes, be <br />compatible with surrounding land forms, create positive drainage and be suitable for <br />post-mining land uses. The DMG's approach of looking at the whole mined azea in <br />judging AOC compliance, not just Pit 1 and the federal lands, also is threatened. <br />Particulazly, the DMG recognized the adverse impact from rebuilding the ridge in Pit 1 <br />on AOC compliance in the 720 Pit and the long-reclaimed Marr area. There is the further <br />question of whether a rebuilt ridge in Pit 1 would be stable. The DMG's professional <br />judgment on these factors, as reflected in the 1990 permit revision approval, makes sense <br />and is supported by the AOC definition as explained in the OSM Director's Directive INE <br />26. <br />OSM's enforcement actions attempt to override the DMG's AOC decision, long <br />after the fact, by requiring that the ridge be replaced in its exact pre-mining form, <br />regardless of the adverse environmental consequences on the 720 and Marr azeas and <br />without any claim of environmental harm from the present, approved configuration. This <br />amounts to an attack not only on the State's professional judgment regazding compliance <br />with the AOC standard, but also on Colorado pernuttees' ability to rely on the DMG's <br />permit decisions in perfonming reclamation. The State's interests in this regazd will be <br />adversely affected by any decisions favorable to OSM in the proceedings for review of <br />the first NOV and the NOV which is expected, the denial of temporary relief, the <br />Cessation Order, the proposed and expected civil penalty assessments, and the potential <br />individual liability if Kerr officials do not comply with OSM's judgment on AOC <br />requirements by September 23, 1994. <br />3M~-t, a~uw <br />