GENERAL54783

• Permit No: C1981015
• IBM Index Class Name: General Documents
• Doc Date: 2/24/1981
• Doc Name: DORCHESTER COAL CO CONFIDENTIALITY OF CERTAIN PROPRIETARY INFORMATION IN MRP PERMIT APPLICATIONS
• From: DELANEY & BALCOMB PC
• To: MLR
• Permit Index Doc Type: GENERAL CORRESPONDENCE
• Media Type: D
• Archive: No

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Mr. David Shelton, Director
February 24, 1981
Page Three
strata capable of bearing or transmitting water), hydrology ~ ;
investigations as required in permit applications are therefore
specifically accorded confidential treatment under 534-32-
112(9). In the alternative, it is our contention that §34-
32-112(9) does not specifically preclude confidential treatment
as claimed by DCC for this hydrology report and that §24-72-
104(3)(a)(IV) of the Colorado Open Records Act does provide
authority for confidential treatment of claimed confidential
geologic or geophysical data.
Board Rule 1.33 under the 1976 Act implements the
statutory authority found in §34-32-112(9) by providing that
"an operator may mark "CONFIDENTIAL" information supplied in
a permit application disclosing the location, size, or
nature of the deposit...." This rule further provides in
subsection (1) that "confidential information so marked
shall not be available to the public until the mining operation
is terminated, unless the operator gives a written consent
to the release of all or any part of the information." It
should be noted that both the above cited law and rule
provide a mechanism whereby the operator is given the discretion
to mark or indicate such information as confidential and
that confidential treatment is thereby provided by operation
of law and regulation. This cited statutory and regulatory
authority, however, provides no authority or mechanism for
the Board or the Division staff to contest or deny such
claim of confidentiality as indicated at the discretion of
the operator.
It should be noted that DCC has submitted a claim
of confidentiality on this hydrology report, that its Dorchester
No. 1 mining operations have not terminated,and that DCC has
not given and will not give a written consent to the release
of this report.
While. the hydrology report in question was'submitted
with a permit application which was reviewed and approved
by the Board under the 1976 Act, it is unclear whether the
Colorado Surface Coal Mining Reclamation Act which was
enacted on July 1, 1979 has any legal bearing on this issue.
For the sake of argument, assuming the 1979 Act does have
some legal bearing on this issue, the following points and
authorities should be noted.
Section 39-33-111(1)(1) of the 1979 Act addresses
confidentiality of permit data in the reclamation plan where
it provides "...except that information which pertains to