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ENFORCE37395
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ENFORCE37395
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Entry Properties
Last modified
8/24/2016 7:46:24 PM
Creation date
11/21/2007 3:32:23 PM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
C1980006
IBM Index Class Name
Enforcement
Doc Date
10/14/1994
Doc Name
KERR COAL CO V OSM RECLAMATTION AND ENFORCEMENT DOCKET NO APPLICATION FOR REVIEW OF NOTICE OF VIOLA
From
DUFFORD & BROWN PC
To
OFFICE OF HEARINGS AND APPEALS
Violation No.
TD1994020352002TV1
Media Type
D
Archive
No
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<br />requires that the final configuration "closely resemble the general surface configuration <br />of the land prior to mining" and "blend into and complement the drainage pattern of the <br />surrounding terrain," with highwalls and refuse/spoil piles removed. (Emphasis added.) <br />This defuution inherently involves subjective professional judgment applied to the <br />specific circumstances of each site. <br />3. In this case, the DMG evaluated the AOC requirement with respect <br />to all disturbed areas at the Mine as a whole, including the 720 Pit in conjunction with all <br />of Pit 1, not just artificially sepazated areas of Pit l as OSM did in issuing the two notices <br />of violation. DMG also evaluated the approved surface configuration of Pit 1 in relation <br />to conformance with land forms in the adjacent area and immediate vicinity, use of all <br />available spoil, the need to redisturb the long-revegetated Marr Pit area to obtain any <br />additional backfill material, slope stability, positive drainage, and the ability to support <br />the post-mining land use. These are all pertinent factors in evaluating AOC compliance <br />on a site-by-site basis, as OSM has acknowledged in Drrective INE-26. The DMG <br />explained its evaluation process and the basis for its conclusion on AOC compliance in <br />its response to the Deputy Drrector. <br />4. The DMG's conclusion was rationally reached and well supported by <br />the circumstances of the entire Mine, not arbitrary, capricious or an abuse of discretion. <br />Accordingly, OSM was required to accept the DMG's professional judgment as the <br />regulatory authority, particulazly where (1) the BLM as federal land manager fmds the <br />result satisfactory for the adjacent federal lands in Pit 1, and (2) OSM asserted its <br />differing opinion at the enforcement stage, not at the permitting stage. <br />5. Accordingly, there was no violation because Kerr 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 />C. The Final Surface Confiylrration Complies 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. I(2)(a). OSM interprets that Rule <br />to require virtually exact original contour, which is contrary to the defurition of AOC in <br />Colorado Rule 1.04(13) and as interpreted by the OSM Director in Drrective INE-26. <br />2. There was no violation, therefore, of the AOC standazd. <br />u.a~, iaivu~ <br />6 <br />
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