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i <br />TONt BARLO~I' <br />IST DISTRIi T. AE~TUCAY <br />iil-riii~lrllllll Ill <br />IS]] Lf1VGUparH BL'ILDInG ~IIn1JXP,68 IIf ~P 3~nitP~ .~'tFI~EB <br />k'UHIOG rpV. D C :A]I] <br />IlO.] '_'_5.111! <br />F^` "°='!"!1" ~II2tSP IIf ~P}trPSPrifF1fIUPS <br />3~ttsl~inginnE ~(~ 2D515 <br />The Honorable Bob Armstrong <br />Assistant Secretary <br />Land Minerals Management <br />U.S. Department of Interior <br />1849 C Street N.W. <br />Washington, D.C. 20240 <br />Dear BOB: <br />September 29, 1994 <br />CpMMI Rf[5 <br />AG RIC ULiU RE <br />GFNVLL F•xM CauMOOl nfs <br />POII FILx A411~L ULrU.f ax0 NVU4El1 <br />EV V190NMEN r. CPE VIi .NV RV..L <br />D NELO PM EVF <br />MERCHANT MARINE AND FI$HEPIES <br />Cosr GU.PD wo N.~m.nax <br />NA iURAL RESOURCES <br />EVfP4v .n0 MmFN.L Ri SOUeCfi <br />I want to express my deep concern over a situation that is <br />taking place in Colorado involving a dispute between the State of <br />Colorado, Office of Surface Mining Reclamation and Enforcement <br />(OSMRE) and the Kerr Coal Company. While this dispute does not <br />involve Kentucky, it certainly points to a problem that could <br />occur in Kentucky. <br />The issue at hand involves OSMRE's contention that Kerr has <br />failed to return areas disturbed by surface mining to approximate <br />original contour at its operation in Jackson County. I am <br />concerned about the fact that OSMRE failed to issue a Ten-Day <br />Notice to the State regulatory authority, and to consider the <br />State's response to such notice, prior to the issuance of a <br />Notice of Violation. <br />Section 521 of SMCRA requires OSMRE to provide the State <br />regulatory authority with a Ten-Day Notice when it has reason to <br />believe a violation of the Act exists. This Ten-Day Notice <br />procedure does not apply in situations where there is adequate <br />proof that an imminent danger or significant environmental harm <br />exists. <br />In reviewing the Kerr Coal case, it is apparent that no <br />imminent danger or significant environmental harm existed; a fact <br />which the OSMRE inspector freely admitted. As such, there is no <br />reason why the statutorily required Ten-Day Notice procedure was <br />not complied with. <br />It is very important for OSMRE to avoid arbitrary decisions <br />that do not wash with reason or fairness. In this situation, <br />Kerr Coal has no where to turn for a remedy. <br />In my view, you should review this situation to determine <br />why established procedures were not followed, take corrective <br />actions so that lawfully established procedures are complied <br />with, and engage in a dialogue with the State and the company in <br />question in any effort to resolve this dispute. <br />