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If interim temporary relief is granted, the basis for the CO will be <br />nullified and it should be vacated. <br />C. DMG's Determination of AOC Compliance in the Permit Prevails <br />1. The DMG's professional judgment, as the regulatory authority under <br />the approved State program and the Cooperative Agreement, on the subjective question of <br />whether the Permit complies with the AOC requirements of the State program, should <br />prevail. <br />2. The definition of AOC set forth in Rule 1.04(13) of the State <br />Program does not require replication of the premining surface configuration. Rather, it <br />only requires that the final configuration "closely resemble the general surface <br />configuration ...prior to mining" and "blend into and complement the drainage pattern <br />of the surrounding terrain," with highwalls and refuse/spoil piles removed. <br />3. These requirements inherently involve professional judgment <br />specific to each site which the DMG reasonably applied in approving the backfilling and <br />grading and AOC requirements of the Permit. In such circumstances where no precise, <br />objective standard exists, the DMG's professional judgment should prevail where (1) the <br />federal land manager finds the result satisfactory, (2) OSM asserts its differing opinion at <br />the enforcement stage, not at the permitting stage, and (3) DMG has been delegated <br />primary responsibility for enforcing SMCRA pursuant to 30 U.S.C. § 1273(c). See OSM <br />Directive INE-26. <br />4. Accordingly, there was no violation because Ken: complied with the <br />surface configuration requirements of the Permit and the DMG's professional judgment in <br />approving the Permit defines the AOC requirements at the Mine. <br />5. Because the NOV is invalid for this additional reason, the CO <br />likewise is invalid. <br />D. The Final Surface Conf~uration Corpplies with AOC <br />1. Without regard to the backfilling and grading and AOC requirements <br />of the Permit, the surface configuration of Pit 1 complies with the AOC requirements of <br />the approved State Program, and particulazly Rule 4.14(2)(a). OSM interprets that Rule <br />i+~ai. v1LV~ <br />