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II. GROUNDS FOR CONTESTING THE NOV <br />A. OSM Lacked Authority to Issue the NOV because it Violated the <br />Standard in the Secretary's Regulations for Evaluating the DMG's <br />Response to the TDN. <br />1. Mr. Porter issued the TDN pursuant to 30 C.F.R. §843. l2(a)(2) and <br />the Deputy Duector rejected the DMG's response pursuant to 30 C.F.R. <br />§842.1 l(b)(1)(iii)(C). Both regulations authorize subsequent OSM inspection and <br />enforcement action only if the DMG failed to take "appropriate action" to correct a <br />violation or to show "good cause" for failure to do so. <br />2. The DMG's response constituted "appropriate action" or "good <br />cause" if it was "not azbitrary, capricious or an abuse of discretion" under the State <br />Program. It also constituted good cause if "the possible violation does not exist" under <br />the State Program. 30 C.F.R. §842.11(b)(1)(ii)(B)(2) and (4)(i). <br />3. OSM disregarded this deferential "azbitrary and capricious" standard <br />which it was required to apply in evaluating the DMG's response. The Deputy Duector <br />ignored the rational explanation presented by the DMG for its approval of the surface <br />configuration of Pit 1 in the Permit, with which Kerr substantially complied. Instead, he <br />simply restated OSM's disagreement with the DMG's conclusion about compliance with <br />the State AOC standazd in Pit 1, and substituted OSM's judgment for the DMG's in <br />authorizing OSM's reinspection and issuance of the NOV. <br />4. OSM, therefore, exceeded its authority in the federal-state <br />relationship defined by the regulations by not accepting the DMG's response as "good <br />cause," causing the NOV to be invalid. <br />B. DMG's Determination that there was No Violation of the AOC <br />Standard wa not Arbitrary~~nricious or an Abuse of Discretion <br />1. The DMG rationally exercised its professional judgment in good <br />faith, as the regulatory authority, in determining that the backfilling and grading plan <br />approved in the Permit complies with the AOC requirements of the State Program. <br />2. The definition of AOC in Rule 1.04(13) of the State Program does <br />not requrre a rote replication of the premining surface configuration. Rather, it only <br />1161. Idl]/9t <br />