2006-07-27_REVISION - M1978314 - Laserfiche WebLink

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i.° language, the Rule does not apply to the Applicant in any event because it is not "the original Permittee." Accordingly, the Rule provides no authority whatsoever for the Board to grant a conversion to the Applicant as the successor operator at this time. On the other hand, if Rule 1.11.2 is deemed inconsistent with the Act, C.R.S. §34-32.5- 110{5)(a) clearly governs. Martinez v. Dept of Personnel & Admin. Executive Office, 2006 WL 1028900 (Colo. App. 2006) (holding that, unless expressly or impliedly authorized by statute, administrative rules and regulations are without force and effect if they add to, change, modify, or conflict with an existing statute); Cartwright v. State Bd. of Accountancy, 796 P.2d 51 (Colo. App. 1990) (holding that an administrative agency regulation may not modify or contravene an existing statute, and any regulation that is inconsistent with or contrary to statute is void). Therefore, to the extent the Rule conflicts with the Act, C.R.S. §34-32.5-110(5)(x) trumps the Rule and requires the Applicant to hold the 110 Permit for at least two consecutive years before it may apply for a permit conversion. Finally, the Act's requirement that a successor (like any other) operator operate the gravel pit for at least two consecutive years is based on sound public policy. It provides the Board, the DMG and the operator time to determine whether that operator possesses the requisite technical, and managerial background, qualifications and capabilities to manage the mining operation, and to ensure that the operator is financially stable For the long-term life of the mine. In other words, the two-year operational requirement provides the operator time to establish that it is trustworthy and reliable and that it can abide by the terms of the permit in order to protect the public, other mining operators, and the environment. That public policy is consistent with the language of both C.R.S. §34-32.5-110(5)(a) and Rule 1.11.2. In particular, neither the statute nor the Rule speaks to the mining "operation." Rather, the Act and the Rule specifically place conditions on the permit holder or operator. That core focus of both the Act and the Rule recognizes the necessity of prohibiting the man on the street from taking over a mining operation and converting the related permit in order to substantially increase the acreage to be mined without first establishing that such person has the ability, experience and the financial stability to manage the operation without harming the public, the environment and other operators -- all interests and persons that the legislature clearly intended to protect. CONCLUSION For these reasons, the Applicant was not eligible to apply for a conversion of its 110 Permit to a 112 Permit in November 2004. Accordingly, the Board did not have jurisdiction to take any action regazding the Permit Conversion Application in March 2005. Nor does it have jurisdiction to do so now. In fact, Board consideration of the Permit Conversion Application at this time would be in clear contravention of the statute. C.R.S. §34-32.5-110(5)(a) dictates that the Applicant cannot even submit its Permit Conversion Application for consideration until, at the earliest, September 10, 2006. Any attempt to reconsider or approve the Permit Conversion Application prior to initiating a full review process (including, but not limited to, public review, agency consultations and completion of any requisite studies) in compliance with applicable law, \\\DE ~ 029060/000OOi~267217 vl 4