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2010-11-01_REVISION - C1981008
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2010-11-01_REVISION - C1981008
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Last modified
8/24/2016 4:26:26 PM
Creation date
11/4/2010 4:45:16 PM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981008
IBM Index Class Name
Revision
Doc Date
11/1/2010
Doc Name
Brief of Issues for Pre-Hearing Conference
From
Carver Schwarz McNab & Bailey for WFC
To
DRMS
Type & Sequence
PR6
Email Name
SB1
MLT
Media Type
D
Archive
No
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(41), (44), and (48) — (52). Here, again, these allegations attempt to re-open issues that have <br />already been determined and are not appropriate for review in this proceeding. Not only do these <br />issues concern wholly past actions other than those contemplated by PR -06 (which requires <br />Prime Farmlands practices on all reclamation on the Morgan property going forward), but Ms. <br />Turner has previously filed a citizen complaint concerning the Prime Farmlands issue with the <br />Office of Surface Mining, which referred the matter to DRMS for a full investigation. On April <br />23, 2010, DRMS issued a lengthy, written determination finding that the referenced statutes and <br />regulations had not been violated. See, DRMS determination attached as Exhibit A. <br />This written determination is an action subject to formal review under CRS § 34 -33 -124, which <br />places the burden on one who is adversely affected, or who may be adversely affected, by such a <br />determination to seek review by the Board. Under the Rules of the Colorado Coal Regulatory <br />Program, negative determinations following a citizen complaint are subject to this formal review <br />process. Rule 5.02.5(5) provides as follows: <br />Any person who has requested an inspection may request in writing that the <br />Administrator informally review the Division's decision either not to inspect or <br />not to take enforcement action on the basis of an inspection with respect to any <br />violation alleged by that person. The Administrator shall conduct the informal <br />review and report the results in writing to both the person requesting the review <br />and the alleged violator within 30 days of the Administrator's receipt of the <br />request for review. Informal review under 5.02.5(5) shall not affect any right to <br />formal review under 34 -33 -124 of the Act or to a citizen's suit under 34 -33 -135 of <br />the Act. <br />However, again Ms. Turner did not seek informal review by the Administrator or formal review <br />by the Board (she instead sought informal review by OSM). She has long since missed the 90- <br />day statutory deadline in which to seek formal review that is imposed by CRS § 34- 33- 124(1)(a). <br />Therefore, review of this determination cannot now be raised before the Board and Ms. Turner is <br />precluded from raising these issues at the November 17 -18 Hearing. <br />B. Relief Requested <br />WFC therefore requests entry of an order precluding Ms. Turner, or any objector, from raising <br />issues at the Hearing that were already decided in prior permit approvals for the New Horizon <br />Mine or already decided in the DRMS April 23, 2010 determination. To the extent that their <br />testimony would relate to these issues, WFC objects to the issuance of subpoenas to the soil <br />scientists (Jim Irvine, Jim Boyd, Dave Dearstyne, and Dean Stindt) that Ms. Turner has <br />requested. Such testimony appears to concern past permit actions and is therefore not relevant. <br />II. WFC Responses to the Objections received October 26th and 29 2010 <br />The DRMS also received several objection letters on October 26 and 29, 2010. To the extent <br />these letters simply parrot or offer statements in support of the Turner Objection, WFC requests <br />the same relief requested above as to these objections. The objection letters submitted by Ms. <br />Ruth Duffy and by Ms. Deborah Freitag, each of which were received by the DRMS on October <br />3 <br />
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