Laserfiche WebLink
SETff BY=DGS : 3-13- 1 : 8~40AM DFJ(ALB~11441312140007303832:# <br />• 6 <br />Regulations § 5.02.5. Once the Division conducted the inspection, it was oblieed to issue an <br />NOV if it believed a violation existed. Coal Regulations § 5.03.2(2)(a) (Division shall issue a <br />notice of violation). The citizen, having initiated the process, is allowed to participate in the <br />adjudication of the violation. The decision to issue an NOV is not the citizen's but the <br />Division's, however, and that decision is based on the Division's inspection power. Thus, [he <br />Tatums cannot promote their forum shopping expedition simply by whisking away their citizen's <br />complaint and saying, "Oh, uever mind." The Division may vacate its NOV only by reaching a <br />decision on the merits. It is precisely that decision that Basin Resources seeks from the Board. <br />The Board May Vacate the NOV Upon Deternuning <br />That No Violation of the Coal Regulations Has Occurred <br />Basin Resources has subnutted to the Division expert reports indicating that no <br />subsidence damage has occurred at the Tatum house since 1997, and providing an alternative <br />explanation of why the house is exhibiting cracking. Because the Division can vacate an NOV <br />only for good cause, Basin Resources requests that the Boazd find as a fact that subsidence from <br />the Golden Eagle Mine has not damaged the Tatum house since 1997, and vacate the NOV with <br />prejudice. This approach to vacating the NOV allows Basin Resources the benefit of finality and <br />a judgment on the merits. Vacating the NOV without prejudice simply postpones the inevitable <br />reinstatement of these proceedings if the Tatums become dissatisfied with their state court action. <br />The Foram-Shopping Maneuvers olThe Tatums <br />Preiudice Basin Resources and Violate PabGc Policv <br />Basin Resources was prepared to adjudicate the NOV before the Board in January, and <br />indeed had a right to have its contest of the NOV heard at that time. To accommodate the <br />schedule of the Tatum's attorney and the Division, Basin agreed to postpone the hearing until <br />-3- <br />,~ <br />,..;. <br />.:'. <br />i <br />n <br />i <br />~. <br />.~ <br />1 . <br />~. <br />. f ' <br />t... <br />~_ ~~ . <br />~j <br />' Y <br />3~ <br />