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FOGNANI &FAUGHT,PLLC <br />Mr. Allen C. Sorenson nr La <br />April 15, 2009 <br />Page 3 <br />actual mining phase. The Western Mining Action Project and, to perhaps a more limited extent <br />DRMS, appear to conflate these two very different stages in attempting to require the kind of <br />documentation and review at this very early prospecting stage that normally, and properly under <br />the MLRA, are not required until the actual mining phase. <br />DRMS's Mischaracterization of Prospecting Activities as Baseline Site Characterization <br />The DRMS letter asserts the following: "Many of the activities being conducted or <br />proposed to be conducted under prospecting notice P-2008-043 are baseline characterization <br />under the Colorado Mined Land Reclamation Act at 34-32-112.5(5)(a)." DRMS Letter, <br />March 31, 2009, at 2, ¶7. Because DRMS characterizes the (unspecified) activities as such, the <br />letter states that DRMS will retain an independent third party reviewer "to oversee baseline site <br />characterization, monitor field operations, and review the information collected, developed, or <br />submitted." However, hiring of a third party reviewer is not appropriate in connection with a <br />Notice of Intent; instead, it is required only in connection with baseline site characterization <br />activities conducted in connection with an application for a Reclamation Permit under Section <br />112.5 of the MLRA. <br />Powertech is at a loss to understand how DRMS can attempt to impose requirements <br />applicable to an application for a Reclamation Permit on a company that has simply filed a <br />Notice of Intent to prospect. Powertech disagrees with DRMS's conclusion that the listed <br />prospecting activities constitute baseline site characterization, and we believe that DRMS's <br />conclusion is inconsistent with the MLRA and the Mineral Rules and Regulations of the <br />Colorado Mined Land Reclamation Board for Hard Rock, Metal and Designated Mining <br />Operations (MLRB Regulations). Because DRMS does not provide any information about what <br />specific activities it refers to or how it reached the conclusion that those activities constitute <br />baseline site characterization, presumably DRMS is taking the position that any sampling or <br />testing activities at a potential mining site constitute baseline site characterization. This is <br />simply not the case, either practically or legally. <br />Potential operators conduct a wide variety of tests and analyses at a site during the <br />prospecting stage to determine whether or not to attempt to mine the site. It is overly <br />burdensome and, moreover, completely unnecessary for the potential operator to be required to <br />coordinate with and pay for the services of a third-party reviewer hired by the MLRB before <br />every test it conducts during the prospecting phase, however limited or preliminary any given <br />test might be. It would also be unnecessary, since the potential operator will be required to <br />conduct a thorough baseline site characterization under the supervision of a third-party reviewer <br />and submit the information to the MLRB if and when it determines to mine the site, at which <br />stage it will be required to include all this information in its application for a Reclamation <br />Permit. That certainly would be a more appropriate time to evaluate the use of a third-party <br />review.