2010-09-14_ENFORCEMENT - M1977300 (2)

Home Browse Search

Page I of 5 Charlotte Neitzel From: Cheryl Linden [Cheryl.Linden@state.co.us] Sent: Tuesday, August 03, 2010 12:50 PM To: Jillian Allison Cc: Charlotte Neitzel; David Berry; loretta.pineda@state.co.us; Peter Hack Subject: Re: Cotter's Comments Part 4 of 4 Jillian, The Division has already stated its position concerning Cotter's proposed changes to the Board's order and Attachment 1 and will not reiterate its objections to them here but simply stands on its prior objections. Please note, however, the Division denies Cotter's allegation of improper behavior and lack of due process; such allegations are without merit. The Division requests that the Board issue its order in this case. Thank you for your attention to this matter. >>> Charlotte Neitzel <Charlotte.Neitzel@hro.com> 8/2/2010 6:27 PM >>> The a-mails sent on behalf of DRMS today are simply one more way in which DRMS is attempting to manipulate the administrative process in a way that is unfair and a denial of due process. The reason to believe letter does not refer to the opportunity to present "technical" comments. It simply refers to "comments" that could be submitted on the draft order. Further, the a-mails sent today on behalf of DRMS refer to no rules or statutory provisions that would preclude Cotter from submitting Attachment 1. DRMS is clearly incorrect in arguing that a final decision can be made before it is in writing. See Rule 2.9.2: "Petitions for reconsideration must be received by the Office within twenty (20) calendar days of the effective date of the Board's written decision." (Emphasis added.) See also Colo. Rev. Stat. 24-4-105(14)(a): "In any case in which the agency has conducted the hearing, the agency shall prepare, file, and serve upon each party its decision ... Each decision ... shall include a statement of findings and conclusions upon all the material issues of fact, law, or discretion presented by the record and the appropriate order, sanction, relief, or denial thereof;" and 24-4-16(a): "Each decision ... shall be served on each party by personal service or by mailing by first-class mail to the last address furnished the agency by such party and ... shall be effective as to such party on the date mailed or such later date as stated in the decision." (Emphasis added.) These provisions make clear that the decision is not rendered until it is in writing. It is specious to suggest that a final decision occurs prior to preparation of findings and conclusions and service of the final decision. Based on the above, Cotter had no obligation to ask the Board during the hearing to take notice of the facts set forth in Attachment 1, nor could it have asked the Board since Cotter was given no opportunity to develop a response to the new evidence presented by DRMS at the hearing. Rule 2.8.1(4) clearly authorizes such notice if the fact is brought to the attention of the parties before the final decision. No such final decision has been made. Further, the facts set forth in Attachment 1 are "general, technical, or scientific fact" of which notice may be taken. If DRMS wishes to contest those facts, it can do so now. However, if any such response is made, Cotter reserves rights to respond. It is also noteworthy that DRMS never disputes that it purposely decided not to provide Cotter with its responses to Cotter's technical rationale prior to the hearing. This failure to provide advance notice denied Cotter a meaningful opportunity to respond to such responses. In the e-mail sent today at 11:28 am, DRMS objects to Cotter's changes, even though some are identical to the type of comments that DRMS submitted, such as corrections to citations and adding information regarding the date of sealing the mine (compare David Bird's comment on paragraph 15 to Cotter's comment on paragraph 15.) Moreover, DRMS requests that the Board add statements which were not identified during deliberations as 9/14/2010