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i _ ~~ • • C ONOVE R, MCCLEARN Ec HEPPENSTA LL PROFE6610 HAL CORPORATION ATTORNEYS AND COUNSELLORS AT LAW 2600 CENTENNIAL PLAZA IJJ6 SHERMAN STREET DENVER,COLO RADO 00203 - I III IIIIIIIIIIIII III 999 1,11 "d Eli L'N~ "~o[, ~~T.i'I ~1fi_I t'~ Vi'i~~~'T ELEPHONE 1303183)-9222 CnIA- ~~~?'-, 91 j`!C iu ~.i ~t: iu"J ('.~$ TELECO PIER (303163)-69J5 June 28, 1984 MICHAEL 5. McGRTNY Mr. David C. Shelton, Director Mined Land Reclamation Division 423 Centennial Building 1313 Sherman Street Denver, Colorado 80203 Re: Kerr Coal Company/Notice of Violation C-84-112 Dear David: On behalf of Kerr Coal Company ("Kerr Coal") we request that the Division exercise its administrative discretion to vacate notice of violation of No. C-84-112 ("the NOV"). Kerr Coal's request for vacation was presented to Brian Munson-and Michael Savage in a conference held to discuss the NOV on Tuesday, June 26, 1984, and this letter represents a confirmation and formalization of that request. Kerr Coal bases its request for vacation upon two fac- tors. The first is primarily equitable and discretionary in nature and arises from the fact that the situation upon which the NOV is predicated has been evident on the site and contin- uing over at least a two-year period of time. Nevertheless, at no point prior to issuance of the NOV was Kerr Coal ap- prised by the Division that the ongoing situation cro uld repre- sent a violation. Specifically, the NOV is based upon the fact that over a rnnsiderable period of time certain sediment and other rubble has washed off the face of an overburden stockpile and onto adjacent land, which ground is also rnn- tained within the permit area. Despite ongoing development of this condition over a period of at least two years, the situ- ation was never mentioned in any of the numerous inspection reports transmitted to Kerr Coal by the Division. Nor was the potential for this situation to be cited as a violation brought to the attention of Mr. David Gossett, who is respon- sible for supervising and assuring compliance with the terms of the Kerr Coal permit. Kerr Coal has never considered sediment deposition through sheet flow as violative of its permit or the statutes and regulations. That assumption was in fact reinforced by the failure of the Division to point out this situation as a potential violation. Had Kerr Coal been put on notice that the Division found undifferentiated sediment deposition to be