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,- <br />III IIIIIIIIIIIII III <br />999 <br />STATE OF COLORADO <br />DIVISION OF MINERALS AND GEOLOGY <br />Department o! IJatura! Resources <br />I J 1 J Sherman 51., Room 115 <br />Denver, Colorado 80207 <br />Phone: 17031866-3567 <br />FAX: 13031 832-8106 <br />June 9, 1994 <br />Mr. AI Klein <br />Deputy Director, Field Operations <br />Office of Surface Mining <br />Washington D.C. 20240 <br />RE: Federal Notice of Violation C-94-020-352-003 <br />Dear Mr. Klein: <br />a Federal violation for failure to reclaim to approximate original contour. <br />~I~~~ <br />DEPARTMENT OI <br />NATURAL <br />RESOURCE <br />Roy Rome <br />Governor <br />Ames 5. Lahhead <br />E•ecmive Dirrcror <br />Michael B. Lang <br />Drvrsron Duecmr <br />I would like to take this opportunity to reiterate some of the points which we discussed this <br />morning regarding the Notice of Violation which was issued by the Albuquerque Field Office <br />(AFO) to the Kerr Coal Company of Colorado. As we discussed, the chief of the <br />Albuquerque Inspection and Enforcement, Stephen Rathbun, directed that his staff issue Kerr <br />Colorado strongly objects to the issuance of this violation by the AFO on a number of <br />grounds. 'Primarily, Colorado objects to this violation as its issuance flies in the face of the <br />concept of State primacy. The issuance of the violation is based on a wholly unique and <br />misguided interpretation of the Cooperative Agreement. This new interpretation contradicts <br />the principle of a shared commitment on the part of the Office of Surface Mining (OSM) [o <br />cooperatively implement the Surface Mining Control and Reclamation Act and its State <br />counterpart, the Colorado Surface Coal Mining Reclamation Act. <br />Mr. Rathbun has stated. to both State and Kerr Coal Company personnel that the Albuquerque <br />Field Office has Ure authority and jurisdiction to issue a Federal Notice of Violation. The <br />authority cited is the Colorado Cooperative Agreement at 30 CFR 906.30 Article VIII (19). <br />This citation of the Cooperative Agreement states that should OSM and State inspectors <br />"...fail to agree regazding the propriety of any particular enforcement action, OSM may take <br />any enforcement action necessary to comply with 30 CFR Parts 843 and 845." Part 843 <br />describes the circumstances under which OSM may issue Notices of Violation and Cessation <br />Orders, while Part 845 describes the methodology for assessing civil penalties, and thus is <br />not directly applicable to this discussion. <br />Part 843 of 30 CFR sets forth the general rules regarding enforcement actions undertaken by <br />OSM. Part 843.11 authorizes the OSM to issue a Cessation Order during the conduct of any <br />Federal inspection when it is determined that a condition or practice creates an imminent <br />