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DEC. -09' 94~FR1) 14:16 RICH A MUNSON ESQ. TEL:303 534 0126 P. 002 <br />;~ <br />.. <br />United States De~artcnent of the Interior <br />OFFICE OF SURFACE MINING <br />Eled~muion aad Fdfoceemenc <br />Suio: 1200 <br />505 Muqucnz A•e„ue N.W. <br />Albuquerque. Neu. Meaieo 87102 <br />December 7, 1994 <br />CERTIFIED RETURN RECEIPT: P-293-288-954 <br />Mr. James T. Cooper, Vice President <br />Kerr Coal Company <br />One Tabor Center, SuRe 2500 <br />1200 Seventeenth Street <br />Denver, Colorado 80202 <br />Dear Mr. Cooper: <br />i~iiinl~riui~~~~i <br />999 <br />1 have reviewed your request for an extension of the abatement time for Notice of <br />Violation (NOV) #94-02052-006. Although the Office of Surface Mining <br />Reclamation and Enforcement (OSM) and Ken- Coal Company are currently <br />negotiating a settlement for the abatement measures of the NOV, the negotiations <br />in no way relieves Kerr of the responsibility to comply with the abatement <br />measures stated in the NOV. <br />In your request, you state that your participation in negotiations with OSM and the <br />Colorado Division of Minerals and Geology is circumstance to justify an additional <br />90-day extension under 30 CFR 843.12(c). Section 843.12(c) allows extensions <br />not to exceed 90 days except upon a showing that it is not feasible to abate the <br />violation within 90 calendar days due to one or more of the circumstances in <br />paragraph (f) of that section. You go on to state that you believe Kerr meets the <br />criteria for an extension under 843.12(f)(1) and(4). <br />Paragraph (f)(1) requires that a permittee who has timely applied for and diligently <br />pursued an approval of a permit renewal or designs or plans which will not be <br />granted until 90 days after a valid permit expires, for reasons not within the control <br />of th3 pemnittee, may be allowed additional time. The abatement of the NOV <br />requires reclamation work only, therefore a permit is not required. The curcent <br />circumstances do not meet this criteria, <br />Paragraph (f)(4) allows additional time where climatic conditions preclude <br />abatement within 90 days. The weather frcm the time of issuance of the NOV on <br />September 13, 1994 up to November 29, 1994, at which time an OSM inspector <br />was on the site, had not precluded the abatement. Also, under 843.12(h), the <br />permittee has the burden of establishing by clear and convincing proof that they <br />