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Hollne Roberts & Owen LP- <br />Attorneys at Law <br />Ms. Jillian Allison <br />December 2, 2010 <br />Page 3 <br />provided under Colorado law, and Cotter has exercised and will continue to exercise <br />such rights, as necessary. Accordingly, ...." <br />Paragraph 12 of the draft order asserts that the Board has jurisdiction over this matter <br />pursuant to §§ 34-32-102 through 107 and 124 of the Colorado Mined Land <br />Reclamation Act ("Act"). These provisions do not support this statement. <br />With respect to paragraph 13 of the draft order, section 34-32-124(1) of the Act does <br />not state that "a violation may be found if an Operator fails to comply with a Board <br />order that resulted from a violation of the Act." Instead, section 34-32-124(1) sets <br />forth a procedure when there is a reason to believe that there has occurred a violation <br />of an order, permit, notice of intent, or regulation, and the procedure specified is to <br />provide written notice meeting certain requirements. Section 34-32-124(1) says <br />nothing about finding a violation after a notice has been issued. Section 34-32-124(1) <br />is therefore procedural, not substantive. In addition, please reflect that Cotter <br />complied with corrective action number three to the extent that it relates to corrective <br />action number one. Please also revise the next to the last sentence in paragraph 13 of <br />the draft order to add "a portion of before "the Board's August 11, 2010 Order." <br />With respect to paragraph 14 of the draft order, section 34-32-124(2)(a) of the Act <br />does not authorize the Board to issue a cease and desist order for violation of a Board <br />order. Please also revise the next to the last sentence in paragraph 14 of the draft <br />order to state: "By failing to comply with a portion of the Board's August 11, 2010 <br />Order, ...." <br />With respect to paragraph 16 of the draft order, Rule 3.3.2 does not authorize the <br />Board to issue a cease and desist order or to impose a penalty on Cotter in this matter. <br />First, Rule 3.3.2(2)(c) does not state that a violation of an order can result in a cease <br />and desist order, and therefore no authority to issue a cease and desist order for <br />violation of an order exists. Second, Rule 3.3.2(2)(b) does not allow imposition of a <br />penalty for violation of an order. Third, Rule 3.3.2(2)(b) is inconsistent with the <br />limitations in the Act regarding when penalties can be imposed. Section 34-32- <br />124(7) of the Act states that penalties can be imposed only for violations of a permit. <br />Regulations cannot confer authority that the governing statute does not provide. In