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Division Comment <br />The issue of the Applicant's alleged right to enter was not raised during the public comment period <br />and therefore is untimely. Even if the issue was timely, the Division believes, based on all the <br />documentation submitted, that the Applicant has met its burden to comply with the required <br />showing of its legal right to enter. It should be noted that the objectors are the only people who have <br />raised this issue with the Division and these individuals do not personally hold any rights to the sand <br />and gravel or to the minerals reserved in the deeds associated with the property. The Applicant has <br />supplied sufficient documents including a legal opinion to support the assertion that the Operator <br />has legal right to enter and mine the sand and gravel at the site. <br />The Division does, however, as a cautionary measure, recommend including as a condition to the <br />permit, that the Operator be required to notify the Division within 48 hours should a legal mling or <br />agreement related to the rights to the sand and gravel at the site be made. <br />3. Rule 1.6.2 (1)(e)(ii) -General Applicant Procedures <br />The Applicant told the Division that the objectors' attorney notified the Applicant, on May 31, <br />2006, that during the application process, the Applicant failed to notify Qwest of the permit <br />application, and that Qwest has an underground line buried within 200 feet of the permit <br />boundary. Additionally, the obj ectors' attorney informed the Division that there is an overhead <br />utility line that is believed to be within 200 feet of the eastern permit boundary. <br />DRMS Response <br />The questions raised by the above comment are related to Rule 1.6.2(1)(e)(ii) of the <br />Construction Materials Rules and Regulations, regarding the requirement that the applicant mail <br />or personally serve a copy of the notice immediately after the first publication to the Owners of <br />Record of all land surface within 200 feet of the affected lands. <br />The Applicant did, in fact, fail to notify Qwest and the owner of the overhead utility line of the <br />permit application. The Applicant informed the Division that the overhead utility line is 1,000 <br />feet from the permit boundary, and therefore outside of the 200 foot requirement. Upon <br />realizing the oversight in failing to notify Qwest, the Applicant contacted Qwest regarding the <br />permit application and acquired a signed, notarized agreement from Qwest on June 2, 2006, <br />where Qwest waived its right to participate in a comment period or to object to the permit <br />application. Also, a signed damage agreement between the Operator and Qwest is in place. A <br />utility locate was conducted at the request of the Applicant, and a determination was made that <br />the Qwest line is located 189 feet from the permit boundary. <br />Division Comment <br />This issue was not raised during the public comment period and therefore is untimely. It does, <br />however, address a deficiency in the application. The Division believes that this deficiency has <br />been adequately addressed by the Applicant. <br />