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JAN-i6-04 16:16 FR01/rRL Page 2 +303 866 5396• T-867 P.003/004 F-969 To determine if the Petition meets the threshold inquiry, this matter has been placed on the agenda for discussion at the upcoming January meeting of the Mined Land Reclamation Board ("Board'. The meeting will be held in Denver on January 20. The Board will not consider testimony from either patty at that time and will base its decision solely on the Petition and a written response from the Division of Minerals and Geology ("Divisian'~. The Division is acting not as a party but as staff to the Board in this matter. As you may know, the Division has determined that the Petition meets the threshold inquiry and has recommended that the Board hold a hearing on this matter. If the Board determines that the Petition meets the threshold inquiry, it may choose to consider the mortar at the February Boatel meeting, set for February 25 and 26, 2004. If may also permit oral argument at that time, in accordance with Construction Materials Rule 2.9,3. The Board is not obligated to allow oral argument, and it may grant or deny the Petition based solely on the written material presented. The Board may likewise choose to take no action at all. Constrtction Materials Rule 2.9.4 states that a petition "shall be deemed denied" unless it is granted within 60 days of receipt. Zf the Boazd determines that the Petition has met the threshold inquiry, I will advise the Board to set a reasonable deadline for considering written opposition to the Petition. Wktile I cannot predict what the Board may do, I will recommend a deadline of February 16, 2004. Construction Materials Rule 2.9 does not specifically address how - or whether - petitian opponents are ro participate in the consideration process. Tn advising the Board to accept amd consider written opposition to the Petition, I am relying on the Administrative Procedures Act, § 24-4-] Ot et seq., C.R.S. (2003), which provides as follows: Any agency conducting a hearing ... shall have authority to:... regulate the course of the hearing ... issue appropriate orders which shall control the subsequent course of the proceedings ... and take any other action authorized by agency rule consistent with this atdicle or in accordance, to Ute extent practicable, with the procedure in district courts. § 2A-4-105(4) C.R.S. (2003). If the Boazd decides to allow oral azgument to consider the Petition, I would likewise recommend that Petition opponents be allowed ro present oral azgument. Because of the technical nature of the subject matter presented in the Petition, I will also recommend that the Board allow expert testimony provided such testimony is directly relevant to the Petition. My authority for this position derives from the APA section cited above. I hope this provides some clatiry to you and your clients regarding the Petition. PIease call meat 303-866-5?73 if you have additional questions.