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Mr. Robert Hagen - 4 - June 5, 1987 <br />In this case OSM has modified the abatement for the cessation order resulting <br />in some confusion. Some of the confusion was removed by Tom Ehmett in a phone <br />conversation with Fred Banta. In that conversation Tom Ehmett assured Fred <br />Banta that the modification of cessation order did not preclude La PTata Coal <br />from obtaining an exploration permit to abate the order. However, in the <br />modification OSM imposed an abatement date that cannot be met because of the <br />time involved in the review process including the time requirements allowing <br />for public participation. Although the abatement date can be modified again, <br />it would have been appropriate to select an achievable date from the outset. <br />La Plata Coal has expressed consternation about the unachievable abatement <br />date which, given the applicants need to obtain a number of local, state and <br />federal agency approvals, is understandable. Prior consultation and setting <br />of an appropriate abatement date could have avoided the confusion. <br />Appropriate Personnel And Procedures For Processing Enforcement Actions <br />One issue of particular concern in this case is the manner in which it was <br />handled. With respect to personnel, it has been the State policy for several <br />years to not allow the inspection and enforcement supervisors to be hearing <br />officers. This is because the objectivity in the hearing process would be <br />compromised if enforcement personnel held the hearings. It is our <br />understanding that this has been the OSM policy also. <br />However, in this case the OSM Inspection and Enforcement Supervisor who made <br />the original decision to issue the cessation order also presided as Hearing <br />Officer of the informal hearing. This supervisor was the only OSM <br />representative at the hearing. In addition, information obtained by the OSM <br />Supervisor at the hearing was subsequently used to modify the cessation order <br />to a violation of greater seriousness than the original violation. We believe <br />it is improper for the Inspection and Enforcement Supervisor to have been the <br />dominant decision maker in all phases of the process in this case. There is <br />an inherent conflict of interest by having the same individual perform all <br />these roles. <br />Further, we are disturbed that the informal hearing process was used as a <br />basis for obtaining additional information from the operator to be used <br />against him. The modification of the cessation order to a more serious <br />violation was precipitated by information obtained at the hearing. We <br />question the propreity of this. Under the Colorado law, evidence produced in <br />an informal hearing cannot be introduced as evidence in a formal hearing. <br />Evidence must be obtained outside the informal hearing process. If statements <br />made or evidence produced at the informal hearing are the basis for the <br />modification of the enforcement action, this would be of questionable <br />propriety because such information could not be used as evidence during art <br />appeal. The enforcement action must be supportable independent of the <br />informal hearing process. It appears that this is not the case here. It is <br />not clear to us whether OSM has similar rules of procedure regarding the use <br />of such evidence, but at a minimum it is questionable that the informal <br />hearing was used as an additional investigative tool. <br />