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3. The NOV was invalidly issued. The material in question is not "underground development waste" as defined in Rule 1.04(143), nor is it otherwise "waste" within the meaning of the Act, the regulations promulgated pursuant thereto, or Permit No. C-047-81 issued for the Blue Ribbon Mine, as amended. Rather it is coal product with a high ash content conveyed by Blue Ribbon to Arlie Clark with the intent and for the purpose of blending, processing and resale by Clark to his customers. Any responsibility for disposal of any waste resulting from Clark's processing rests with Clark or some other party, not Blue Ribbon. 4. Further, since Blue Ribbon conveyed all right, title and interest in and to the coal product to Clark or an affiliated entity in a bona fide commercial transaction, it is impossible for Blue Ribbon to comply with the abatement action demanded by MLR without committing civil or criminal trespass, conversion or theft. Such action would not only contravene the rights and title of Clark or an affiliated entity, but also of their creditors which Blue Ribbon is informed claim an interest in such coal product. 5. Petitioner requests a formal hearing before this Board, with Denver, Colorado as the hearing site and further requests said hearing be held at this Board's earliest, regularly scheduled meeting. WHEREFORE, Blue Ribbon prays that the NOV be vacated and held for naught, that the Board herein expressly find that the material described in the NOV is not underground development waste, that Blue Ribbon be awarded its costs and fees herein expended as allowed by law, and such other relief deemed just and equitable. Respectfully submitted, WELBORN, DUFFORD, BROWN & TOOLEY By: /~. Richard L. Fanyo, No. 238 1700 Broadway, Suite 100 Denver, Colorado 80290-1199 Telephone No. (303) 861-8013 Attorneys for Blue Ribbon Coal Company - 2 -