2020-01-28_ENFORCEMENT - C1981041 (2)

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and provide separate, written notice to adjoining property owners. § 34-33-125(1), C.R.S. After providing that notice, the operator may submit the application for release to the Division. Id. 13. When an operator requests the release of all or part of a performance bond or deposit, the Division is responsible for evaluating the request, conducting inspections, and issuing a proposed decision on the release of the bond. §§ 34-33- 125(2), (4), C.R.S. 14. Division is required to provide written notice to the operator of the Division's proposed decision on an application for release within sixty days of its completion of the required evaluation and inspection. § 34-33-125(4), C.R.S. The Division is separately required to publish notice of the proposed decision in a newspaper of general circulation in the locality of the mining operation and send written notification to the board of county commissioners of the county where the mining operation is located. Id. 15. Though the Board can hold an adjudicatory hearing on proposed decisions for the release of bonds, it can only do so if a request for an adjudicatory hearing is submitted and "received within thirty days of issuance of the proposed decision ...." § 34-33-125(6), C.R.S. The Division issued its proposed decision on SL-11 on September 16, 2019 and, under the plain language of the Act, any requests for adjudicative hearings must have been received by October 16, 2019. Fontanari did not submit a request for an adjudicative hearing within thirty days of the issuance of the proposed decision on SL-11. 16. Rule 3.03.2(6), however, states that requests for an adjudicative hearing "must be received within thirty (30) days of the first publication of the proposed decision by the Division." This deadline is inconsistent with the plain language of section 34-33-125(6), C.R.S., which is tied to the date of issuance of the proposed decision. Where a statute conflicts with a rule, the statute controls. E.g. Colo. Consumer Health Initiative v. Colo. Bd. of Health, 240 P.3d 525, 528 (Colo. App. 2010); Ettleman v. Colo. St. Bd. of Accountancy, 849 P.2d 795, 798 (Colo. App. 1992). Under the plain language of the Act, any request for adjudicative hearing must have been received by the Division within thirty days of issuance, not publication, of the proposed decision for the Board to have jurisdiction to conduct an adjudicative hearing. 17. If no request for an adjudicative hearing is received within the thirty days following the issuance of the proposed decision by the Division, as required under section 34-33-125(6), "the proposed decision of the [Division] shall be final." § 34-33-125(5), C.R.S. Because no requests for an adjudicative hearing were received by October 16, 2019, the Division's proposed decision became final by operation of law on October 16, 2019 and the Board cannot conduct an adjudicative hearing on the decision. Snowcap Coal Company, Inc. C-1981-041 3