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Page 1 of 2 <br />Hernandez, Daniel <br />From: Berry, David <br />Sent: Monday, June 23, 2008 1:08 PM <br />To: Gorham, Kent; Hernandez, Daniel; Brown, Sandy <br />Subject: RE: Question Regarding Rule Interpretation <br />Ideally, we would manage the objection, which includes a determination as to "validity", and notify the objector <br />accordingly. They would have a right to argue our determination that the objection is not valid for whatever <br />reason. In this case, it seems implicit that if they chose not to pursue an informal conference, then they are no <br />longer involved. However, the regs are not clear on this point. An objector may still have a right to request a <br />hearing, even if they chose not to request an informal conference. We would of course argue that they did not use <br />their right to informal conference, but that does not necessarily mean they can't proceed with an <br />appeal..... whether on technical points, or to argue that we invalidated the objection for any other reason. <br />The findings should document the receipt and handling of any objections. <br />While 1 understand Kent's argument, I do not believe that the logic is the only possible path. Because the issue of <br />validity is subjective, and rightfully subject to appeal, I believe that a more correct and complete interpretation <br />would be that these objectors were "interested parties", and were entitled to the notice described at 3.03.2 (5). <br />There is no doubt that a board proceeding would be inconvenient, but objectors do have a right to be heard, even <br />if their claim would be likely denied without much argument. <br />Do not do anything differently on this case, but please proceed as described above on future cases. <br />DB <br />From: Gorham, Kent <br />Sent: Friday, June 20, 2008 4:50 PM <br />To: Hernandez, Daniel; Berry, David <br />Subject: RE: Question Regarding Rule Interpretation <br />Reading Rule 3.03.2(3) one could argue that the Durans, in this case, don't have a "valid legal interest" and are <br />not a "Federal, State, or local government agency" so they don't have the right to object to the bond release. <br />And if we didn't consider their objection valid initially with regard to the bond release, and they were informed of <br />that and they did not pursue the process through the informal conference, which would be the route for a valid <br />objection, why would we believe they should be afforded a formal public hearing? <br />We would not entertain this frivolous claim of blast damage even through the citizen complaint process. As was <br />clearly stated to the Durans and Daskos, any claim of blast damage more than five years after the fact cannot be <br />substantiated by Division personnel during an inspection. The requirement to have blast records even available <br />for inspection has expired. Furthermore, their claim is not germane to the bond release, as the industrial bond <br />release affects only a small fraction of the total bond held and a blast damage claim has nothing to do with the <br />lands included in the bond release. <br />The Durans and Daskos were informed that the Division would not be investigating their claim of damage. They <br />have obviously chosen not to pursue the issue, at least with the Division, as evidenced by the fact that they did <br />not respond to our letter. I cannot understand why we would now believe that we are required to encourage their <br />continued involvement when they have obviously chosen to drop the issue. Even if this went to the Board, I can't <br />6/23/2008