2010-09-14_ENFORCEMENT - M1977300 ‎(2)‎

• Permit No: M1977300
• IBM Index Class Name: ENFORCEMENT
• Doc Date: 9/14/2010
• Doc Name: Reply of Cotter Corporation/ Petition for Reconsideration.
• From: Holme Roberts & Owen LLP
• To: DRMS
• Email Name: DB2
• Media Type: D
• Archive: No

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the reason for the ruling. These include comment 4 to add a statement about "alleged surface water runoff
exiting the mine area and flowing into Ralston Creek." Cotter presented evidence rebutting these statements. By
requesting the addition in paragraph 4, DRMS is assuming that the Board accepted every single one of DRMS'
arguments, which is not supported by the deliberations. DRMS' request to add "The Division further stated that
the underground mine pool might also be a contributing factor" is also requesting the Board to add portions of
the inspection report that apparently were not deemed important by the Board. (The sentence actually supports
the position that DRMS never concluded that the mine pool was a contributing factor to contamination of
Ralston Creek.) DRMS also argues that Cotter's comments are not based on the record, but Cotter included
references to testimony and exhibits in support of its comments. DRMS' e-mail objecting to Cotter's proposed
changes is another example of over-reaching.
Charlotte L. Neitzel
Holme Roberts & Owen LLP
1700 Lincoln St., Ste. 4100
Denver, CO 80203
Direct: 303-866-0487
Fax: [phone]
[e-mail]
From: Cheryl Linden [mailto:[e-mail]]
Sent: Monday, August 02, 2010 3:12 PM
To: Charlotte Neitzel; Jillian Allison
Cc: [e-mail]; [e-mail]; Peter Hack
Subject: RE: Cotter's Comments Part 4 of 4
Rule 2.8.1(4) is inapplicable to the case at hand. First, Cotter never asked the Board during the hearing to "take
notice" of a general, technical or scientific fact- nor could it. This rule involves facts that are of the type upon
which judicial or administrative notice may be taken, and not the kind of facts that are in dispute here. See
section 24-4-105(8), C.R.S. Second, even if applicable, the requirements of this rule are not present: (1) The
Board has already made a "final decision"; reducing the Board's decision to writing is a different matter. See
sections 24-4-105(8) and (16), C.R.S; (2) The Division was not and has not been afforded an opportunity to
controvert Cotter's attempted new evidence, which is a requirement of this rule; and (3) The time for possible
application of this rule is before testimony is closed.
Cotter has had every opportunity to submit evidence to the Board, in writing and orally. That it failed to submit
the evidence it Is now trying to submit post-hearing In Attachment 1 reflects, not on the fairness of the hearing
or on the Division, but on Cotter. Cotter failed to present the evidence it is now attempting to submit and failed
to object to evidence it is now trying to dispute post-hearing. There was no wrongful "tactical" action by the
Division as Cotter alleges. Cotter's allegation that it somehow did not receive a full and fair hearing is simply
specious. This is especially so given that Cotter never raised its present objection during the hearing; rather, it
now only raises it three weeks after the Board has ruled against its position. Moreover, Cotter's present
arguments and submittals are not a proper response to the Board's request for technical comments on the
Board's proposed order.
>>> Charlotte Neitzel <[e-mail]> 8/2/2010 12:48 PM >>>
This responds to Cheryl's e-mail below. I will separately respond to the later e-mail she sent today and to the
comments submitted by the Division of Reclamation, Mining and Safety (DRMS) on the draft Board order.
Rule 2.8.1(4) states that "[t]he Board may take notice of general, technical, or scientific fact, but only if the fact
so noticed is specified in the record or is brought to the attention of the parties before Fnai decision and
every party is afforded an opportunity to controvert the fact so noticed." (Emphasis added.) The final decision is
9/14/2010