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

>>> Robert Tuchman <[e-mail]> 9/13/2010 8:30 PM >>>
Dear Ms. Allison,
The Division's position on Cotter's Petition for Reconsideration is flawed on several grounds.
First, it would be both arbitrary and capricious for the Board to now reverse its position on Cotter's entitlement to a hearing on its
Petition for Reconsideration. As you know, Cotter requested the opportunity to present oral argument on its petition pursuant to 2
CCR 407-1, Rule 2.9.3. Based on your email of this morning and the posting on the Board's website, the Board expressly granted
Cotter's request for a hearing. Indeed, according to your email, the Board granted Cotter's request shortly after it received Cotter's
petition on August 31. Thus, the Board obviously believed Cotter was entitled to a hearing and that such hearing would assist the
Board in ruling on Cotter's petition. In its email to you this afternoon, the Division provides no explanation why the Board should
do an about face and deny Cotter the opportunity to be heard which the Board has already granted.
Second, the Division takes no issue with Cotter's entitlement to adequate notice once the Board decided to grant Cotter's request
for a hearing. The Division's email makes no mention of Cotter's due process rights secured under the Colorado APA or, for that
matter, the Colorado and United States Constitutions. The Division's silence on this issue can only be construed as agreement with
Cotter's position. Specifically, once the Board decided to grant a hearing to Cotter, Cotter was entitled to adequate notice in
accordance with the Colorado APA. By its email below, the Division recognizes that adequate notice was not given and that the
Board did not comply with the Colorado APA. For this precise reason, the Division requests that the Board cancel the hearing and
thereby take away the hearing right it has already granted.
Third, the Division makes no mention of when it received notice of the "formal public hearing" that the Board scheduled. This
silence again suggests that the Division received notice of the hearing long before any notice was given to Cotter. Rather than
concede that such discrepancy in notice exists and that the parties have not been treated equally, the Division seeks to cancel the
hearing. Cotter respectfully submits that the correct way to cure the discrepancy is not by cancelling the hearing but, instead, is by
leveling the playing field and rescheduling the hearing in compliance with the Colorado APA.
Fourth, Cotter has not taken the position that "30 days notice is required for the Board to act on Cotter's Petition for
Reconsideration," as asserted by the Division. Instead, as indicated above, Cotter is entitled to 30 days notice once the Board chose
to grant Cotter's request for a hearing.
Fifth, contrary to the Division's email, Cotter has not asserted that the "agenda should delete reference to a presentation by David
Bird." To the contrary, Cotter is asserting that it must receive timely notice if Mr. Bird and other witnesses will testify at the
hearing.
Ultimately, the Division's email is flawed because it ignores the fundamental purpose of holding a hearing, which is to fully inform
the Board as to why it should reconsider its August 11, 2010 Order. Cotter believes it has information that will assist the Board in
making an informed decision. The Board apparently believes that it would benefit by receiving such information. Thus, rather than
cancel the hearing, the Board should maximize its opportunity to obtain the facts by rescheduling the hearing in compliance with
Colorado law.
For the above reasons, the Board should reschedule the hearing on Cotter's Petition for Reconsideration for the Board's monthly
meeting in mid-October. Again, your prompt response to this request would be greatly appreciated given the efforts that a formal
hearing demands and given the competing obligations on the parties' and their counsels' schedules.
Sincerely,
Robert Tuchman
From: Cheryl Linden [maiIto:[e-mail]]
Sent: Monday, September 13, 2010 4:55 PM
To: Jillian Allison
Cc: Charlotte Neitzel; Robert Tuchman; [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
Jillian,