PERMFILE70660

• Permit No: M1993023
• IBM Index Class Name: Permit File
• Doc Name: IN RE PETITION OF MOFFAT CNTY FOR DECLARATORY ORDER
• Media Type: D
• Archive: No

evenly against all agency actions. Moffat County regularly deals
with numerous such sub-agencies in its activities. None of those
sub-agencies, except this Board, require review of actions or
permit applications by the Society. For example, Moffat County
landfills are operated pursuant to permits issued by the Hazardous
Material and Solid Waste Management Division of the Department of
Health. Driveway permits are issued to Moffat County by the
Department of Transportation. Underground tanks are operated
pursuant to permits issued by the Department of Health. Air
quality control permits for mining work are issued by the
Department of Health's Air Pollution Control Division. None of
these permits are subjected to the review and comment of the
Society. Under the Society's interpretation of the Act, it would
have a duty to review all of these actions. The Society is simply
not prepared to do so. To impose that responsibility on the
Society, through a convoluted interpretation of the Act, gives the
Act an absurd result. Such a result must be avoided in construing
the Act.
4. Agency's interpretation of the Act is not controlling.
When a statute is ambiguous, the implementing agency's
interpretation of the statute is given some deference. City and
County of Denver v. Industrial Comm., 690 P.2d 199 (Colo. 1984).
However, the agency's interpretation is not controlling. Colorado
Div. of Emolovment and Training v. Parkview Eoiscooal Hosp_, 725
P.2d 787 (Colo. 1986). Other factors, such as legislative intent
and the avoidance of absurd and unfair results must also be
considered.
The deference to agency interpretation is weaker when that
interpretation is not supported by long-standing administrative
practice, or when the administrative interpretation is not made
contemporaneously with passage of the statute, but radically
changes at some point. See Bowman v. Eldher, 149 Colo. 551, 369
P.2d 977 (1962) Here, the Society's interpretation is entitled to
little deference. The Society's initial interpretation of the
statute, dating back at least to 1977, was consistent with that of
the Petitioner. Attached as Exhibit B is a document prepared by
the Society in 1977, only two (2) years after passage of the Act.
In that document, the Society does not take the position that it
has any review rights concerning properties not listed in the
Register. It only addressed properties listed in the Register and
its right to review and comment on those properties when they are
effected by a state agency action.
The Society's interpretation of the Act changed, however, in
the early 1990's when it issued the Rules and Procedures attached
hereto as Exhibit E. These Rules and Procedures exceed the
Society's authority under the Act. The Society's present
interpretation of the Act is both improper and incorrect.
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