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STATE OF COLORADO DIVISION OF RECLAMATION, MINING AND SAFETY Department of Natural Resources 1313 Sherman Sc, Room 215 Denver, Colorado 80203 Phone: (303) 866-3567 FAX: (303) 832-8106 F 0` OCi~' ~~i s~0 ~^' ~~~il~0i J ~O 9d'~~c/d ~~0~ Sd ~ ~o' COLORADO ^ I V I S I O N O F RECLAMATION MINING - bc- SAFE7Y October 12, 2006 Robert White Box 12426 Overland Park, KS 66212 RE: Allen Drilling and Excavating Co., Inc., Allen Pit File No. M-2005-080 Comments Dear Mr. White, Bill Owens Governor Russell George Executive Director Ronald W. Cottony Division Director Natural Resource Trustee The Division of Minerals and Geology has received your comments regarding the Allen Drilling and Excavating Co., Inc., Allen Pit permit, in a letter dated October 3, 2006. In this letter, you make reference to a number of statutes and facts that lead you to the conclusion that The Division of Reclamation, Mining, and Safety should revoke the above permit. With regard to your references to portions of the statues 24-4-102, 24-4-104, and 18-8-50~, please be aware that the Division of Reclamation, Mining, and Safety operates under the statutes within 34-32.5 when evaluating permits related to the extraction of construction materials. Although statues in section 24-4 and I S-8 do pertain to all agencies of the state, the Division does not have reason to believe that the Applicant is in violation of any of the statues that would deem revocation of the permit necessary or appropriate. The statutes and facts you cite indicate that the Applicant has committed perjury with regard to his permit application. The Division has no evidence, proof, or legal decision that the Applicant has committed perjury. Relative to the facts cited in your comment letter, specifically to the Applicant's pursuit of a permit with Park County to erect a permanent structure on the site, please be aware that a permit issued under the Division is often dynamic in nature. Although the Operator is required to perform his or her operation under the parameters of the approved permit, as defined in the permit application and adequacy review processes, ofren the situation, conditions, or plans of the Operator change, and the statue and the rules and regulations governing activities related to mining allow for revisions to the permit. To commit an operator to the parameters of the original, approved permit would often be prohibitive to their operation, and the laws and rules account for this heed for flexibility. Additionally, obtaining all the necessary permits to conduct mining activities at a site is often a multi- step process. It may have been inappropriate for the Applicant to indicate in the permit application with the Division that a permanent structure would be erected at the site if it had not been previously approved by the county. In your letter you state that Mr. Allen should not be allowed to make the desired changes to his permit through a technical revision, but should be required to submit the revision in the form of an amendment. The Division is not aware of the Applicant's intent as to the fate of the concrete batch plant he is attempting to have approved by the county, but if he plans to remove the structure as a part of the reclamation plan, it would be inappropriate for the Division to require the Applicant to submit his application for changes in the form of an amendment based on Rule 1.1(6) of the Mineral Rules and Regulations for the Extraction of Construction Materials, which defines an amendment as a change in the permit or an application which increases the acreage of the affected land, or which has a significant effect on the approved or proposed reclamation plan. If, on the other hand, tho Applicant chooses to propose a change to his reclamation plan and have the building remain, then he would be required to file for an amendment with the Division. Office of Office of Mined Land Reclamation Active and Inactive Mines