Laserfiche WebLink
D. There Can be No Violation of the AOC Standard. at Least Until the <br />DMG Proposes to Approve Phase I Bond Release for Pit 1 <br />1. The DMG has not yet decided whether it will approve Ken's <br />application for Phase I bond release for any lands in Pit 1. <br />2. Until the DMG approves the Phase I release, Ken's obligation to <br />return all disturbed areas of Pit 1 to AOC remains in effect and remains secured by Ken's <br />bond monies. <br />3. Thus, even if Pit I has not met AOC yet, the consequence is merely <br />that Ken's obligation to achieve that result continues, not that the AOC standard has been <br />violated. <br />4. Accordingly, the NOV is invalid because OSM measured AOC <br />compliance prematurely. <br />E. The Abatement Actions Required in the NOV Exceed OSM's <br />AuthoritX. <br />1. The NOV required Kerr to begin moving dirt to abate the alleged <br />violation by September 28, 1994, and to complete the job by October 29, 1994. No <br />provision was made or time allowed to obtain the DMG's approval for a Permit revision <br />to backfill and grade the Pit 1 azea differently than the existing Permit requires. <br />2. By this action, OSM has effectively revoked the DMG's authority as <br />the regulatory authority to regulate surface coal mining operations on fee lands at the <br />Mine under the State Program. OSM can revoke the State Program, but only after <br />following the notice and hearing requirements of 30 U.S.C. §§ 1254(6) and 1271(6). <br />Even then, OSM must afford an operator with aState-approved permit it fmds in <br />noncompliance a reasonable opportunity to revise the permit to conform reclamation <br />operations with the applicable requirements. 30 U.S.C. § 1254(d). <br />3. Even if a violation is found to exist, therefore, OSM exceeded its <br />authority in prescribing the abatement actions and deadlines set forth in the NOV. <br />iuat ~a~7iv~ <br />