2010-09-14_ENFORCEMENT - M1977300 ‎(3)‎

• Permit No: M1977300
• IBM Index Class Name: ENFORCEMENT
• Doc Date: 9/14/2010
• Doc Name: Division Response to Cotter's Petition for Reconsideration- email
• From: Robert Tuchman
• To: Jillian Allison- AGO
• Email Name: DB2
• Media Type: D
• Archive: No

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>>> On 9/14/2010 at 1:07 PM, in message <A94C218B9BCB934486DD42EBDEE9FE8E67F8CACED2@DENCO-
EXCCR. h road. h ro.com >, Robert Tuchman <[e-mail]> wrote:
Dear Ms. Allison,
The Division's position on Cotter's Petition for Reconsideration remains flawed.
Within minutes of receiving the Division's email from this morning, I reviewed the Board's agenda (as posted on its web site) for
tomorrow's meeting. The agenda still refers to a "Formal Public Hearing" on Cotter's Petition for Reconsideration. Cotter assumes
that the Board would not include this description on its formal agenda if such description was not intended. This is especially so
where you, as the Board's attorney, expressly referred Cotter to the agenda in your email from yesterday (reprinted below).
Moreover, a prior agenda (August 2010) issued by the Board for a separate matter regarding the Schwartzwalder Mine referred to
"Board Action."
The Division has provided no basis for its statement that the "agenda apparently mistakenly entitled this matter as a hearing." The
Board, not the Division, issues the agenda for Board meetings. If the Division has some basis to say a mistake was made, it could
have provided that information. No such information was provided.
By scheduling Cotter's Petition for Reconsideration for a "Formal Public Hearing," and advising Cotter of the same, the Board did
in fact grant Cotter's request for a hearing. By doing so, the Board triggered the 30-days' notice requirement of CRS 24-4-105(2).
Cotter never stated that the Board was required to hold a hearing on Cotter's Petition for Reconsideration. Cotter has stated that
once the Board scheduled the petition for a "Formal Public Hearing," it was required to provide 30-days' notice in accordance with
CRS 24-4-105(2). Such notice has not been provided. Accordingly, the Board may not go forward with tomorrow's hearing
regarding Cotter's petition and should reschedule the hearing in accordance with the requirements of CRS 24-4-105(2). Cotter has
proposed that the Board reschedule the hearing on Cotter's petition for the Board's mid-October 2010 meeting.
Sincerely,
Robert Tuchman
From: Cheryl Linden [mailto:[e-mail]]
Sent: Tuesday, September 14, 2010 10:13 AM
To: Robert Tuchman; Jillian Allison
Cc: Charlotte Neitzel; [e-mail]; [e-mail]; [e-mail]; Peter Hack;
[e-mail]; [e-mail]
Subject: RE: Division's Response to Cotter's Petition for Reconsideration re Schwartzwalder Mine
As stated in our prior email, we do not agree with Cotter's position that 30 days notice is required for the
Board to act on Cotter's petition. The APA only requires hearings with 30 day notice if a hearing is required
under the APA, a state statute or the constitution. Section 24-4-105(2)(a), C.R.S.
Here, the APA does not require a hearing (the APA only requires a hearing when an agency is denying
a license, 24-4-104), the constitution likewise does not require a hearing for a petition for reconsideration
and the Mined Land Reclamation Act does not require a hearing. Accordingly, contrary to Cotter's
argument, a hearing is not required. Indeed, under its rules, the Board may grant or deny a petition for
reconsideration based solely on the written materials. Thus, the Board members may convene as a Board
tomorrow in order to do so.
The Division is unaware of any Board decision to grant Cotter's request for oral argument. That the agenda
apparently mistakenly entitled this matter as a hearing does not mean the Board granted Cotter's request for
oral argument.