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36. The issues of first impression raised by Kerr and the DMG in Docket No. <br />94-12-R which meet that standazd are: <br />(a) OSM lacked authority to issue the NOV without first issuing a Ten- <br />day Notice because it was enforcing the Colorado State Program, not <br />the Federal Lands Program, during the inspections on May 12 and <br />2~, 1994. OSM, therefore, was required to follow the procedures of <br />30 C.F.R. § 843.12(a)(2), including the Ten-day Notice requirement, <br />before issuing the NOV. <br />(b) As the regulatory authority with primary responsibility and <br />jurisdiction over Kerr's Mine, the DMG's professional judgment on <br />compliance with the subjective AOC standard prevails over OSM's <br />contrary opinion. This conclusion is particularly required where (I ) <br />OSM raised no objection until after the work was performed <br />substantially in accordance with the Permit, (2) OSM based its <br />judgment on only an isolated portion of Pit 1 while the DMG <br />considered the entire Mine in evaluating AOC compliance, and (3) <br />OSM's position on Pit 1 would create a potential AOC violation in <br />the 720 Pit or require redisturbance of the Marr Pit which has been <br />fully reclaimed for more than eleven years, all contrary to the OSM <br />Director's Directive INE-26. <br />(c) The final surface configuration of Pit 1 achieved by Ken's <br />backfilling and grading work, which substantially complied with the <br />AOC requirements in the Permit approved by the DMG, meets the <br />applicable AOC standard in the State Program. <br />ueno,, ia:.eri+ 9 <br />