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19941 wherein the Division informed the applicant that the Exhibit R information had not been received <br />and that the Division did not consider the application submitted until all required exhibits were received. <br />It was the applicant, not the Division, who took no action for 2 1 /2 years by not providing the Exhibit <br />R information to the Division until June 3, 1997. Rule 1 .6.2 clearly indicates that the applicant, not <br />the Division, is responsible for mailing and providing proof of mailing the Exhibit R notices to the <br />Division. <br />Regarding your statement that you have "already published the notices in the newspaper", publication <br />of the notices was clearly premature given the publication dates shown on the proof of publication <br />documents contained in your June 17, 1997 correspondence. Rule 1.6.2 (11 Idl clearly indicates that <br />the applicant must publish notice within ten 1101 days after filing of the application with the Office. <br />At the time the notices were published, the application package was still incomplete and as such not <br />considered filed or submitted. The fact that the application was incomplete at the time the notices <br />referenced in your June 17, 1997 correspondence were published, and that the public notice would <br />have to be re-published, is documented in correspondence from the Division to the applicant dated <br />November 1, 1994 and January 3, 1995. Furthermore, our June 4, 1997 correspondence to the <br />applicant again clearly indicates that the applicant must publish notice within ten 110) days after the <br />date of submittal (June 3, 19971, or no later than June 13, 1997. <br />The Division is not "completely ignoring the consequences of Minerals Rules and Regulations Rule <br />1.4.11" as asserted in your letter. We have already explained to you in our June 9, 1997 <br />correspondence that the automatic approval provisions of Rule 1.4.11 do not apply to the Orion Pit <br />application since the application package was incomplete until June 3, 1997. As a result, the 120 day <br />period did not start until June 3, 1997. Therefore, the Division has not failed to make a final decision <br />on the application within one hundred twenty 1120) days, or one hundred eighty (180) days in the case <br />of a complex application, consequently the application has not been automatically approved as asserted <br />in your letter. In order for a set of documents received by the Division to be considered an <br />"application" as the term is used in the Rules, including Rule 1.4.11, the set of documents must <br />include all the exhibits required by Rule 6 to be submitted along with the permit application form. The <br />Orion Pit application package did not include all of the Exhibits required by Rule 6 until June 3, 1997, <br />therefore there was no "application" as referred to in Rule 1 .4.11 until that date. <br />It is true that the applicable requirements for a letter of credit type financial warranty are found in the <br />Rules. The "language provided by the Office" referred to in Rule 4.7 111 is in the form of two 121 <br />financial warranty forms, one entitled "Financial Warranty Letter of Credit" and the other entitled <br />"Irrevocable Letter of Credit". Both of these forms were provided to you in correspondence from Ms.. <br />Laverne Lemay of our Denver Office dated May 30, 1997. The Division disagrees with your statement <br />that "there was no 'language provided' to us during the course of DMG's review of the ORION PIT <br />application". The review of the Orion Pit application is still in progress, and the Division provided you <br />with the language referred to in Rule 4.711) in correspondence dated May 30, 1997. <br />Rule 4.7 121 makes no reference to "conformity with current banking rules and procedures" as asserted <br />in your letter. In order for a letter of credit to be acceptable to the Division as a financial warranty, it <br />must comply with all of the requirements of the Act and Rules, including Rule 4.7. The Division has <br />informed you in previous correspondence dated May 14, 1997 and June 9, 1997 that submittal of a <br />financial warranty was premature since the application was incomplete, and that the wording of the <br />financial warranty documents you provided did not meet the requirements of Rule 4.7. Further, the <br />Act, in Section 34-32.5-1 17 (31 lal clearly states, "A financial warranty shall be in such form as the <br />Board may prescribe". <br />~~1$6 <br />2 <br />1 <br />