2010-01-13_GENERAL DOCUMENTS - M1981185 (2)

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STATE OF COLORADO DIVISION OF RECLAMATION, MINING AND SAFETY Department of Natural Resources 1313 Sherman St., Room 215 Denver, Colorado 80203 Phone: (303) 866-3567 FAX: (303) 832-8106 January 13, 2010 Ms. Lisa Giovanniello MECEIVED 6M 21 2010 Division of Reclamation, Mining and Safety COLORADO D I V I S I ON OF RECLAMATION MINING SAFETY Bill Ritter, Jr. Governor Harris D. Sherman Executive Director 4557 County Road 124 Ronald W. Cattany Division Director Hesperus, CO 81326 Natural Resource Trustee RE: May Day Mine, Permit No. M-1981-185, Response to Citizen Request for Party Status to a possible Enforcement Action and Citizen Complaint Dear Ms. Giovanniello: This letter is in response to your letter, received by DRMS on December 29, 2009, requesting that you be considered a Party Member for the Board Meeting scheduled for February 11th, 2010. I would like to take this opportunity to explain the administrative process related to a notice of violation (NOV) hearing. In this matter DRMS is acting as a prosecutor, and carries the burden of proof regarding an alleged violation of the Act. Similar to a criminal proceeding, the only parties to the action are DRMS (prosecutor) and the Operator (defendant). DRMS, in an exercise of its prosecutorial discretion, determines on a case by case basis which matter it will be presenting to the Board as a potential violation. Traditionally, the Board has not allowed outside interested persons to intervene as parties to the NOV, meaning testimony or presentation before the board is generally limited to DRMS and the Operator. Although the meeting is public and you may attend, the NOV process does not always allow you to provide comment to the Board. Again, just as you cannot intervene as a party in a criminal matter, it is very difficult to intervene as a party in an administrative NOV matter. Please note, this letter is not intended to discourage you from attending the hearing, rather it is intended to inform you of the administrative process so that you are not surprised if you are unable to participate in the NOV hearing. Please also be aware that the February Board Meeting is scheduled for February 10-11, 2010, not just the 11th as stated in your letter. I would also like to take this opportunity to discuss administrative procedure involved in this matter, which I hope will clarify the confusion you have regarding continued work at the mine following the November 12, 2009 Board hearing and the November 24, 2009 inspection of the May Day mine. First, please understand that the November 12th Board rulings did not take effect until the written Board Orders were signed and mailed on December 10th. Second, mining operations noted during the November 24th inspection (prior to issuance of the written Board Orders) that were not in compliance with the permit and were not addressed by the previous enforcement actions, were addressed through scheduling of a February enforcement hearing before the Board. DRMS will inspect the site in the near future and forward a copy of the inspection report to you. Office of Office of Mined Land Reclamation Denver • Grand Junction • Durango Active and Inactive Mines