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Cheryl Linden, Esq. <br />June 21, 2010 <br />Page 5 <br />DRMS will allow Cotter to remove source material and place it into the <br />Minnesota portal. If DRMS approves the removal of source material, such <br />removal will further minimize disturbance. Based on the above, Cotter has <br />minimized disturbances as required by section 34-32-116(7)(g). <br />The third statutory provision cited by DRMS in the Reason to Believe Letter is <br />"failure to protect areas outside of the affected area from slides or damage <br />occurring during the mining operation and reclamation," which DRMS alleges <br />is a violation of Colo. Rev. Stat. § 34-32-116(7)(h). DRMS has made no <br />allegations regarding "slides" in its letter, and "damage" is not defined in the <br />statute or regulations. In light of this vagueness and basic elements of statutory <br />construction, the term "damage" should be construed to cover damage <br />associated with slides. 2A Norman J. Singer, Statutes and Statutory <br />Construction § 47:16 (6" ed. 2000) ("the coupling of words denotes an <br />intention that they should be understood in the same general sense."). This <br />construction of the statute is supported by the regulation that DRMS has <br />promulgated to implement section 34-32-116(7)(h), which states: <br />All grading shall be done in a manner to control erosion and <br />siltation of the affected lands, to protect areas outside the <br />affected land from slides and other damage. If not eliminated, <br />all highwalls shall be stabilized. <br />2 CCR 407-1, Rule 3.1.5(3) (emphasis added). The regulation's focus on <br />grading, erosion, siltation, slides, and stabilization of high walls shows that the <br />statute's and regulation's purpose is to protect against damage associated with <br />slides. Since DRMS has not made factual allegations regarding slides and <br />affirmatively found on page one of its Inspection Report that grading at the site <br />is "in compliance," there is no basis to believe that Cotter has violated section <br />34-32-116(7)(h). <br />The fourth statutory provision cited in the Reason to Believe Letter is "failure <br />to protect all surface areas of the affected land so as to effectively control <br />erosion and attendant water pollution." See Colo. Rev. Stat. § 34-32-116(7)(i). <br />The DRMS has made no factual allegations regarding erosion. The Inspection <br />#1478373 0 den