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FROM:natural TO:DMG Mike Long Page 5 JAN 21. 1994 5:30PM 8174 P.06 mal hearing on the Division's proposed decision regarding permit renewal would, of course, have to comply with the publication and time period requirements of Section 34-33-119(4), C.R.S.t i.e., the Division must publish notice of the proposed decision in a "newspaper of general circulation in the locality of the surface coal mining operations once a week for two weeks following issu- ance of the proposed decision," and the Division must wait thirty days from issuance of the proposed decision for any request for a formal public hearing by any potentially adversely affected party. The MLRH must hold a formal public hearing within 30 days of any request. Section 34-33-119(5) and Rule 2.07.4(3)(a)(b). since Basin has already requested a formal hearing on its renewal applications (apparently because it believes it will be "adversely affected" because any proposed decision will not be acted upon in time to allow it to continue operations after it's permits expire). Basin must waive the requirement that the MLRH hold such a hearing within thirty days of the formal request, ae- auming Basin's request takes effect immediately upon issuance of the proposed decision and that the next MLRH meeting is more than thirty days from issuance of the proposed decision. in any event, it appears that the MLRH may hear Basin's request for temporary relief because Rule 2.07.4(3.)(d) appears to allow the consideration of a request for temporary relief to be conducted apart from, and prior to, the formal hearing on the merits of permit renewal proposed decision. Whether Basin has a substantial likelihood of prevailing on the merits of the permit renewal depends in part on whether the Divi- sion will recommend approval of Hasin's renewal applications. If the Division recommends approval, Basin will probably prevail in its renewal attempt and will therefore meet the first requirement under Rule 2.07.4(3)(d) to obtain temporary relief. However, even if the Division recommends against approval of the permit renewal, Basin is correct in its "Memorandum fn Support of Request for Public Hearing" (Memorandum) that the Act and regu- lations place the burden of demonstrating that a permit renewal should not be granted lies with the party opposing renewal. See Act, Section 107(7)(d) and Rule 2.08.5(2). Therefore, even i~ the Division proposed not renewing the permit, Basin has an argu- ment that there is still a substantial likelihood that it will prevail on the merits pursuant to the statutory and regulatory presumption/preference in favor of renewal. Whether or not the Division's proposed decision is to approve or deny renewal of Basin's permits,