2017-04-24_REVISION - C1981041 (2)

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irrigation methods to sub -surface conditions in of installing useless plugs) is a request for a "permit revision". Snowcap now takes the position that the Board lacks jurisdiction, under its enabling statutes, to accept, consider or adopt the Fontanari Repair Plan. Specifically, in its Pre -Hearing Statement, Pg. 9, Snowcap cites C.R.S. §34-33-115(1)(a) and asserts that that section "...does not permit an objecting landowner, like Fontanari or Carey, to propose or otherwise demand permit revisions....". ' (C.R.S. §34-33-116 has a similar provision relating to technical revisions .2) The Pre -Hearing Conference Operator, in reliance upon the Rationale for Proposed Decision for Snowcap Coal Company submitted by AAG Roberts on behalf of this Board, has refused to label Items 5-9 (dealing with surface subsidence and alternative irrigation) as issues for resolution at the scheduled hearing.) Both Mr. Roberts and Mr. Waldron consider these issues to be "non -jurisdictional" which cannot be argued or asserted before this Board — even as a counterproposal or counterargument to the permit holder's proposed "repair". Under Snowcap's argument this Board lacks any power — even acting sua sponte - to modify Snowcap's request. Instead, the Board is limited to "accept" or "reject": leaving the landowner to the complete and unfettered mercy of whatever the permit holder seeks to request (if at all). In a word, TR -69 would be "monolithic". That is, Fontanari must accept whatever Snowcap, DRMS and the Board care to do to or with Fontanari's lands or future use of those I "During the term of the permit, the permittee may submit an application for revision of the permit together with any necessary revisions to the reclamation plan, to the office." Sec. 34-3-115(l )(a) Z "During the term of the permit, the permittee may submit an application for a technical revision of the permit to the office." Sec. 34-33-116(1) 5