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Hobe Roberts & Owen Lur <br />Attorneys at Law <br />Ms. Jillian Allison <br />December 2, 2010 <br />Page 4 <br />other words, the Legislature determines the scope of an agency's authority and the <br />agency cannot by regulation expand its own limited authority. Cotter also disagrees <br />that "Cotter's failure to comply with the Board's August 11, 2010 Order is a violation <br />of its permit" or "the Act". In addition, please add "a portion of before "the Board's <br />August 11, 2010 Order" in the first sentence of paragraph 16. <br />With respect to paragraph 17 of the draft order, Section 34-32-124(7) does not <br />authorize imposition of a penalty on Cotter in this matter because it allows imposition <br />of a penalty only for violation of a permit. The September 16, 2010 Notice makes no <br />allegations about how Cotter's permit was allegedly violated. As with other portions <br />of the draft order, the record does not contain support for this assertion. <br />The draft order does not include the Board decision to deny Cotter the opportunity to <br />present a defense that it would have been impossible to comply with paragraph two of <br />the August 11, 2010 Order, which is a material issue of law. <br />The draft order also did not address the material issue of law presented in Cotter's <br />Reply that any statutory provision that imposes penalties on claimants seeking in <br />good faith judicial review of an agency award raises a serious question of whether the <br />statutory provision would be upheld as constitutional. <br />The draft order further does not reflect the Board's decision to exclude from the <br />record in this proceeding Cotter's evidence and pleadings presented to or filed in the <br />proceeding on which the August 11, 2010 Board Order was purportedly based and <br />Cotter's appeal of the August 11, 2010 Board order. The record in the previous <br />order's proceeding included the twelve documents presented by Cotter to the Board <br />on November 15, 2010.