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4. The OSM violated the mandatory procedures set forth in its <br />regulations, and incorporated in the Cooperative Agreement, for conducting the May 25 <br />inspection and issuing the NOV because: <br />a. OSM did not issue a written ten-day notice to Kerr and the <br />DMG; <br />b. Even if the six-day oral notice was sufficient, OSM did not <br />advise the DMG in writing why its response was insufficient; <br />c. OSM deprived the DMG of its right to request informal <br />review of the disagreement with the OSM inspectors by the Deputy Director. <br />5. Kerr was adversely affected by OSM's breach of the Cooperative <br />Agreement and failure to follow its own mandatory regulations. At great expense and <br />effort, Kerr performed the backfilling and grading in accordance with the plan approved <br />in the Permit by the DMG. Kerr relied upon that plan as defining its backfilling and <br />grading and AOC obligations. By taking preemptive enforcement action, OSM deprived <br />Kerr of the benefit of the ten-day notice and informal review procedures for resolving any <br />differences of opinion between the DMG and OSM regazding whether the Permit <br />complies with the AOC requirements of the approved State program. <br />6. OSM lacked authority to issue the NOV and, therefore, OSM lacked <br />authority to issue the CO for failure to abate the NOV. <br />B. Interim Temporary Relief from the NOV Pending Review of the NOV <br />Should be Granted by the Board Nunc Pro Tunc August 23 1994 Thereby <br />Nulli 'ne the Basis for the CO. <br />1. Kerr's Motion for an expedited decision on its Motion and Renewed <br />Motion for Interim Temporary Relief is pending before the Board in IBLA No. 94-779. <br />Kerr requests that interim temporary relief be granted effective August 23, 1994. The <br />DMG filed a Petition to Intervene in that case along with a Brief in Support of Kerr's <br />appeal and request for interim temporary relief on or about September 20, 1994. <br />2. Interim temporary relief from the NOV effective August 23, 1994, <br />should be granted in No. 94-779 for the reasons stated by Ken and DMG. <br />u+o-i. vitav~ <br />