2010-09-14_ENFORCEMENT - M1977300 (3)

Home Browse Search

The Division does not agree with Cotter's position that 30 days notice is required for the Board to act on Cotter's Petition for Reconsideration. Under Rule 2.9.1, a petition for reconsideration must set forth a clear and thorough explanation for grounds justifying reconsideration including any new and relevant facts that were not known at the time of the hearing. Thus, this rule requires a petitioner to state any new facts in its written petition. Rule 2.9.3 provides that the Board may grant or deny a petition based solely on written submittals, or in its discretion the Board may allow oral argument. The Division has requested in its Response to the Petition that the Board deny Cotter's petition based solely on the written material. Even assuming the correctness of Cotter's argument, no hearing would be involved in such an action; the Board is simply ruling on a petition. The agenda item for this matter is more appropriately entitled Formal Board Action, not Formal Board Hearing. On a related note, the Division agrees that the agenda should delete reference to a presentation by David Bird. Although Mr. Bird is the environmental protection specialist assigned to this mine site, for purposes of a petition for reconsideration, it is up to the Board to decide how it wants to proceed, i.e., grant or deny the petition on the written submittals alone, or allow oral argument and then grant or deny the petition. As stated above, the Division requests that the Board deny the petition based on the written submittals. Accordingly, the Division asks that the Board deny Cotter's current request to set a formal Board hearing for October. >>> Robert Tuchman <Robert.Tuchman@hro.com> 9/13/2010 2:34 PM >>> Ms. Allison, Based on your email received this morning (September 13, 2010) at 11:03 a.m., the Board has scheduled a "formal public hearing" on Cotter's Petition for Reconsideration for this Wednesday, September 15, 2010. For the reasons set forth below, Cotter respectfully objects to this hearing date and the Board's failure to provide timely notice in accordance with Colorado law. The Colorado Administrative Procedures Act ("APA") establishes mandatory procedures to ensure that parties to an agency adjudicatory hearing are accorded due process of law. CRS 24-4-105(1). Under these procedures, parties entitled to notice of a hearing (such as Cotter) shall be given timely notice of the time, place, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted." CRS 24-4-105(2)(a). Further, "such notice shall be served personally or by mailing by first-class mail to the last address furnished the agency by the person to be notified at least thirty days prior to the hearing." Id. Your email of this morning does not comply with these requirements. Forty-eight hours notice of a "formal public hearing" on Cotter's Petition for Reconsideration is not "timely" and does not comply with the mandatory 30-day notice required by CRS 24-4-105(2)(a). Moreover, even assuming 48 hour notice is timely, which it is not, the Board has failed to comply with the service requirement of CRS 24-4-105(2)(a) by serving Cotter personally or by first class mail. Posting on a website or sending an email fails to provide such notice. Moreover, Cotter has concerns that the Division was given notice of the hearing long before notice was given to Cotter. The Board's agenda item for the hearing indicates that David Bird will be making a presentation and therefore presenting evidence. Please let me know when the Board informed the Division that the hearing on Cotter's petition would be scheduled for this Wednesday and that Mr. Bird would have the opportunity to make a presentation. Did the Board provide such notice to the Division "shortly after" the Board received Cotter's petition? If so, why wasn't Cotter provided such notice "shortly after" the Board received Cotter's petition? As you know through your participation at the July 12, 2010 hearing, matters involving the Schwartzwalder 4