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• September 26, 1990. The Division's position on this issue was <br />first communicated in writing to NCEC in its "adequacy" letter <br />dated October 2, 1990. <br />This issue is the subject of a Petition for Declaratory <br />Order filed by NCEC on October 5, 1990. The Division formally <br />opposed this petition at the October 18, 1990 Board meeting. The <br />Board continued the petition to the November Board meeting. On <br />October 19, 1990 the Division issued its proposed decision on <br />this pending permit revision including its position that the Lacy <br />load-out could not be approved in this permit decision and must <br />be the subject of a separate permit revision and public notice. <br />On October 23, 1990 NCEC filed its Appeal and Request for Hearing <br />on this issue. This appeal and petition were set for hearing <br />before the Board on November 14-15, 1990. The Division, NCEC and <br />the Garfield Citizens Alliance (hereinafter referred to as the <br />GCA) agreed to the consolidation of the petition for declaratory <br />order with the appeal of the proposed decision and the setting of <br />a hearing on these matters at the December Board meeting. <br />Relief Requested: <br />Delete those parts of the proposed decision which indicate <br />the Lacy load-out is not approved as part of this decision and <br />substitute the required findings and permit approval of the Lacy <br />load-out. <br />• Grounds for Relief: <br />1. Rule 2.07.03 (2) does not specifically require an <br />applicant for a permit revision who, after the completeness <br />public notice, amends the pending permit revision to include a <br />non-adjacent railroad load-out, then to post a new public notice <br />for the non-adjacent railroad load-out. <br />2. The Division, to NCEC's best knowledge, has never <br />before so interpreted or applied Rule 2.07.03 (2) to any similar <br />permit decision. <br />3. The Division had actual knowledge of this revision <br />in August and September, 1990 but did not formally notify NCEC of <br />its position until its final "adequacy" letter dated October 2, <br />1990. Further, The Division adopted this position in its letter <br />to OSM dated September 26, 1990 before informally or formally <br />notifying NCEC of its position. The Division's delay and manner <br />of communicating this position and opposing NCEC's petition for <br />declaratory order to resolve this dispute at an earlier date have <br />prejudiced NCEC's rights and interests by increasing their <br />permitting and legal costs and delayed the ultimate resolution of <br />this issue. <br />4. The GCA had actual knowledge of the Lacy load-out <br />2 <br />