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Ey 'Yt <br /> Mr. Michael Mechau 4 <br /> state takes appropriate action or can show good cause for failing to take action, OSM is estopped <br /> from taking further enforcement action against the coal mining operator in question. The <br /> standard for judging whether the state action is "appropriate" or whether a showing of good cause <br /> is, in fact, "good," is to ask whether the state's reply to the TDN is "arbitrary and capricious." If <br /> the state's reply to OSM's TDN is not arbitrary and capricious, OSM is prohibited by the Federal <br /> regulations from taking further enforcement action against the operator for the alleged violation. <br /> As mentioned above, the DMG's actions to date show that it has clearly met the arbitrary and <br /> capricious standard in this case. The DMG is receiving 69 percent of the proceeds of the <br /> bankruptcy of MCR and is using that money to reclaim the site. It has forfeited MCR's bond <br /> pursuant to its regulations and is using that money to reclaim the site. It has filed a civil action in <br /> state court against MCR seeking to recover the cost of reclamation that exceeds the amount of <br /> the bond and, after having suffered an adverse decision at the trial level, has continued to pursue <br /> the case through appeals to the state appellate courts. <br /> Considering the foregoing, I conclude that the DMG has taken appropriate action in response to <br /> OSM's TDN in this case. Accordingly, I hereby affirm the April 28, 1998, decision of the <br /> Denver Field Division Chief not to perform an independent estimate of the cost of completing <br /> full reclamation at the Coal Basin site, nor to independently file suit against the MCR or its <br /> principals to recover costs of reclamation. <br /> If you do not agree with this decision concerning your complaint, you have the right under 43 <br /> CFR 4.1281 et. sea. to appeal to the Office of Hearings and Appeals. If you wish to appeal this <br /> decision, your written notice of appeal must be filed within 20 days from receipt of this decision <br /> with this office and with the Office of Hearings and Appeals, Board of Land Appeals, 4015 <br /> Wilson Boulevard, Arlington, Virginia 22203; telephone (703) 235-3800. This notice must <br /> identify the decision being appealed and should include a statement of reasons for appeal. <br /> Appeal Identification is 98-140-001. If a statement of reasons is not included in the notice of <br /> appeal, it should be submitted within 20 days after the filing of the notice of appeal. <br /> Sincerely, <br /> Richard J. Seibel, Lgional Director <br /> Western Regional Coordinating Center <br /> cc: Division of Minerals and Geology <br /> Regional Solicitor' Office <br /> Mid-Continent Resources <br />