2006-06-12_REVISION - M1978314 (2)

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Mined Land Reclamation Board June 12, 2006 Page 5 years before it is eligible for conversion and expansion of its operations. Any other interpretation of the statutory provision reads additional language into the Act, which is impermissible. Further, 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 both the DMG and the operator time to determine whether the new operator is qualified to manage and run the mine, to establish and confirm the operator's intentions with respect to the mine, and to ensure that the operator is financially stable for the long-term life of the mine.3 For these reasons, the Boazd 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. C.R.S. §34-32.5-I10(5)(a) dictates that King Mountain's Permit Conversion Application is not ripe for review until, at the eazliest, September 10, 2006. Any attempt to reconsider or approve the Permit Conversion Application at this time would, therefore, be void. See Russell v. City of Central, 892 P.2d 432, 438 (Colo. App. 1985). 2. Xing Mountain's Failure To Comp/y With The Financial Warranty Requirement Raises Concerns About Its Financial Viability. Under C.R.S. §34-32.5-117(1) and (3)(a), the Boazd may not issue the 112 Permit to King Mountain until King Mountain provides a financial warranty which includes "proof of financial responsibility." See also Rule 4.1(2). The bond guazantees compliance with the operator's reclamation plan and the terms and conditions of the operating permit. As such, the financial warranty requirements of the Act provide strong economic incentives for the operator to complete reclamation and return the mined land to productive use, which is particularly important when a shell corporation does not even own the land but rather leases it for its mining operations. On Mazch I5, 2005, the Boazd, lacking the authority to do so (as described above), approved King Mountain's original Pennit Conversion Application (CN-Ol), contingent upon the submission of a financial warranty. However, because King Mountain did not submit that financial warranty within one calendaz yeaz of such approval under C.R.S. §34-32.5-11?(3xa) and Rule 4.1(2), the Board refused to issue the permit and, in accordance with Rule 1.6.5(1), required King Mountain to re-notice its application. King Mountain's failure to provide a financial warranty, though perhaps based on a technicality, should not be overlooked. Indeed, it is grounds for revocation of a previously approved permit or conversion thereof. Moreover, with respect to its initial Permit Conversion Application, King Mountain did not post a bond with the ~ A similar requirement is applicable in the transportation industry whereby the owner of a transportation business i.e. operating shuttle buses for disabled persons through the Regional Transportation District) must have actually owned the business for a minimum of five years before such company may submit a bid for a corresponding transportation contract. The underlying reason for that requirement is to give the transportation company sufficient time to prove its reliability and viability. \\\DE ~ 2TOfi0N001 - 266818 vl