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 final Board order, and this rule allows the consideration of Attachment 1.
Also, at a meeting on June 15, 2010 among Cotter, DRMS, and the Water Quality Control Division (WQCD),
Cotter presented a rationale for why mine dewatering and mine water treatment were not justified. Both the
WQCD and DRMS asked that Cotter present its technical rationale in writing to the agencies. Cotter sent in its
rationale on June 25th to both agencies, and logically expected that it would receive some feedback. On June
281 2010, I asked Cheryl when DRMS would be providing a response to the technical rationale. Cheryl's
response was that DRMS had read it, that it did not say anything new, and that DRMS believed it was a proper
corrective action. DRMS (along with WQCD), however, had invited Cotter to submit a rationale at the June 15th
meeting. The Division never provided any written feedback on the points made in the technical rationale before
the hearing. DRMS could have responded to the technical rationale in its July 1st pleading, but it chose not to do
so. It is difficult to conclude anything but that DRMS deliberately chose not to provide any advance notice of its
positions in order to obtain the tactical advantage of "surprise" at the hearing.
Attachment 1 contains technical comments on the draft order, including reiteration of many of the points
presented at the hearing. It is properly part of the administrative record because the Reason to Believe letter
stated that Cotter would have the opportunity to comment on a draft order and the order has not yet been
finalized. Attachment 1 is also properly part of the administrative record pursuant to Colo. Rev. Stat. 24-4-106
(6), which provides, in pertinent part: "In every case of agency action, the record ... shall include ...all ...
other papers presented to or considered by the agency." (Emphasis added.) Cotter has presented
Attachment 1. See also Colo. Rev. Stat. 24-4-105(14)(a) (record shall include all other papers "presented or
considered.")(Emphasis added).
We also disagree with Cheryl's statement about Randy Whicker's testimony. His testimony was addressed by
Cotter's technical rationale.
Moreover, we disagree that Cotter received a "full and fair" hearing. Another example of not receiving a fair
hearing is allowing DRMS through David Berry to testify after deliberations began.
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 9:38 AM
To: Jillian Allison
Cc: Charlotte Neitzel; [e-mail]; [e-mail]; Peter Hack
Subject: RE: Cotter's Comments Part 4 of 4
Cotter's transmittal letter provides no basis for allowing Cotter to submit additional evidence. Cotter did
not raise Its present objection to the Division's evidence during the hearing and therefore has waived any
objection. Also, even assuming Cotter's objection has any basis, Cotter itself presented "new" evidence
through Randy Whicker and therefore its objection falls flat. Cotter here received a full and fair hearing.
Cotter filed four pleadings in conjunction with this enforcement action (on June 21, June 25, July 1 and July 9,
which was the last business day before the hearing). In addition to its proposed EPP (the Whetstone Report),
those pleadings fully set forth Cotter's arguments about the violations and the corrective actions. In addition to
its pleadings, Cotter had every opportunity at the hearing to verbally present its case, and to object to the
9/14/2010