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<br />or actual damage resulting from this alleged <br />violation is practicall}' non-existent and, in <br />any event, clearly confined to the permit area. <br />Negligence, 30 C.F.R. §723.12(d) <br />KCC submits that the failure to install <br />the designated sedimentation control structures <br />was an alleged omission devoid of any negligence <br />due to the Eact that KCC, in the e:<ercise of rea- <br />sonable care, had installed a s~rstem of sedimen- <br />tation control ponds which it felt was adequate <br />to control any drainage from the surface mining <br />operation. <br />5. Good Faith in Attemotino to Achieve Compliance, <br />30 C.F.R. §723.12 (e) <br />As with the other alleged violations, I:CC has <br />immediatel}• begun construction of the sedimentation <br />pond in the area beneath the double topsoil storage <br />areas and will have completed the construction of <br />that pond by August 9, 1979, more than two months be- <br />fore the time for abatement specified in the notice <br />of Violation. Further, KCC has already constructed <br />the diversion ditch for the area above .sedimentation <br />• pond number four. These actions demonstrate Kerr's <br />good faith by way of immediate compliance. <br />KCC requests that the OS'~t elssessment take into <br />consideration the information contained in this letter in <br />determining whether or not to assess a penalty in this case. <br />Very truly yours, <br />Alan W. Czarnowsky; <br />tdanager of Engineering and <br />Planning, Kerr Coal Company <br />AWC:bb <br />bcc: P1r. James A. Larson <br />Gerald W. Grandey, Esq. <br />Mr. Alan W. Czarnowsky <br />Mr. Jay James <br />Mr. Mark Kerr <br />OC: FKC <br />JDA <br />• <br />