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Category4: the Court should exclude materials that were excluded from evidence by the <br />Board on motion. During the hearing before the Board, the Board properly excluded two reports <br />that plaintiffs attempted to introduce into evidence. These reports were only provided to the <br />Division the night before the hearing, in violation of the Board's schedule for the submittal of <br />evidence. The materials were never provided to Western Fuels- Colorado prior to or even during <br />the hearing, but rather counsel for defendant obtained a copy of them from the Division at the <br />lunch break during the hearing. The exclusion of these materials, on motion by the Division, <br />was proper and cannot be disturbed by this Court. Documents in this category are not included <br />in plaintiffs' index, however they are called out in the body of plaintiffs' filing. <br />Category 5: the Court should exclude materials that were submitted to the Division or <br />various other agencies or persons after the approval of PR -06. Unless the Board is deemed to be <br />omnipresent, the record before the Board concerning PR -06 cannot include materials that were <br />never presented to the Board, but rather were presented to other agencies or persons after the <br />Board approved PR -06. Documents 487, 489 -491, and 493 -512 fall into this category. <br />Category 6: materials that cannot be identified or are duplicative of other designations by <br />plaintiffs. Documents in this category include Documents 513 -531, which are apparently <br />incorrectly dated, mis- described or otherwise impossible to identify. For example, Document <br />524 simply says "Applicant's Brief "without without a date for reference. There were several such <br />briefs. Without further clarification by plaintiffs, it appears these materials should not be <br />included. <br />Category 7: the Court should exclude letters of objection from other parties, and letters <br />of support from other parties besides WFC, except to the extent these were considered by the <br />Board in responding to the challenges raised by the plaintiffs in the instant appeal. These <br />materials (to which WFC does not object) were provided to the Board in a package of documents <br />that was submitted by the Division on November 10, 2010. That package is listed on Exhibit 2. <br />Objection or support letters that were not in that package either were either not timely presented <br />or did not raise issues pertinent to PR -06, and therefore should not be included in the record on <br />appeal. The balance of plaintiffs' designation of the record falls into this category. <br />II. WFC's Designation of the Record. <br />4. After the proposed decision on PR -06 and before the close of the hearing, <br />Western Fuels- Colorado timely submitted the materials listed in Exhibit 2, Part 2A hereto to the <br />Board, which documents were accepted and considered by the Board. Similarly, Part 2B of <br />Exhibit 2 shows proper and timely submittals by the Division the Board, and Part 2C shows such <br />submittals by the plaintiffs to the Board. Finally, Part 2D shows the Orders issued by the Board, <br />and the transcript of the hearing prepared by the Board. <br />5. The materials listed on Exhibit 2, Parts 2A, 2B, 2C, and 2D hereto are the only <br />ones properly part of the administrative record for purposes of the instant appeal. <br />WHEREFORE, based on the foregoing defendant WFC requests that the Court strike <br />plaintiffs' designation of the record, and in its place adopt the designation attached hereto as <br />Exhibit 2. <br />100110167.1 } 3 <br />