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Hohne Roberts & Owen up <br />Attorneys at Law <br />Chair <br />March 31, 2011 <br />Page 5 <br />actual construction within the boundaries of the permitted lands would certainly <br />lead to a requirement for numerous technical revisions as well as bond <br />increases, thus putting OEI in a never ending Catch-22. In reality, it is highly <br />unlikely that a developer or bank would be willing to commence construction <br />or lend money on land that is part of a Division coal permit. <br />Additionally, the Regulations implicitly provide that commencement of <br />construction activities is beyond the scope of a permittee's bond liability. <br />Regulation 3.02.1(7) provides that a permittee's liability includes actions <br />required by the reclamation plan, and completion of the plan "in such a manner <br />that the land will be capable of supporting a post mining land use approved <br />under 4.16.3." (emphasis added) <br />OEI's reclamation plan, authorizing an alternative land use pursuant to <br />4.16.3 and approved by the Division (the "Reclamation Plan"), makes no <br />requirement that OEI build five foundations or otherwise engage in <br />construction activities of any kind. Without specific requirements in the <br />Reclamation Plan, the Regulations only require that a permittee develop land in <br />such a manner that it is capable of supporting the approved post mining land <br />use, which OEI has clearly demonstrated. <br />Additionally, the Division and OEI agree that revegetation has been <br />successfully completed, pursuant to the requirements of 4.15.10(2), and the <br />Division does not contend that the reclaimed permit land is not capable of <br />supporting the approved post mining land use, as required by the Regulations. <br />In effect, the Division's requirement that five foundations be built on the permit <br />lands would force OEI to assume the roles of overseer of the real estate <br />developer and general contractor. The Reclamation Act surely did not intend <br />this result, and the Regulations do not support the Division's interpretation. <br />3. Option to Purchase. As further evidence of development of the <br />post mining land use, on April 4, 2006, OEI entered into a Contract to Buy and <br />Sell Real Estate with a real estate developer that provided for an option to <br />purchase the approximately 1900 acre parcel for a price of $40,000,000. The <br />#1524340 0 den