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of the surface facilities in relation to the existing or proposed right-of-way of State <br />Highway 133 was expressed or implied. <br />The Colorado Department of Highways approves the location of the West Elk Mine <br />within 100 feet of the outside right-of-way. <br />On August 6, 1981, the Division granted a variance from the road distance <br />requirement of Rule 2.07.6(2)(d)(iv). <br />The Division's notice of proposed decision approving the variance was published <br />June 29, 1981, and no comments were received during the ten-day public comment <br />period, which expired on July 8, 1981. <br />MCC's public notice for PR-14 indicated Forest Service Road 711 will be within the <br />affected area and a public hearing may be requested for determining whether the <br />interests of the public and affected landowners will be protected. A hearing had not <br />been requested as of October 10, 2008. <br />h) Three hundred feet of an occupied dwelling unless a written waiver from the owner <br />has been provided [2.07.6(2)(d)(v)]. <br />5. On the basis of information submitted by Mountain Coal Company in the form of Exhibit <br />11, and confirmation letter from the State Historical Preservation Office dated March 18, <br />1998, the Division finds that subject to valid existing rights as of August 3, 1977, the <br />mining operation will not adversely affect any publicly owned park or place listed on or <br />eligible for listing in the National Register of Historic Places as determined by the State <br />Historic Preservation Office [2.07.6(2)(e)(i)]. This was confirmed by the SHPO for <br />Permit Revision 12 in a letter dated October 5, 2007 and for Permit Revision 14 in a letter <br />dated September 8, 2008. <br />6. The operator proposes no surface mining of coal; therefore, the documentation specified <br />by Rule 2.03.6(2) is not required [2.07.6(2)(f)]. <br />7. On the basis of evidence submitted by the applicant and received from other state and <br />federal agencies as a result of the Section 34-33-114(3) compliance review required by <br />the Colorado Surface Coal Mining Reclamation Act, the Division finds that Mountain <br />Coal Company, as of October 7, 2008 does not own or control any operations which are <br />currently in violation of any law, rule, or regulation of the United States, or any State law, <br />rule, or regulation, or any provision of the Surface Mining Control and Reclamation Act <br />or the Colorado Surface Coal Mining Reclamation Act [2.07.6(2)(g)(i)]. MCC's <br />compliance review information was verified through the use of the U.S. Office of Surface <br />Mining's Applicant/Violator System. <br />8. Mountain Coal Company does not control and has not controlled mining operations with <br />a demonstrated pattern of willful violations of the Act of such nature, duration, and with <br />such resulting irreparable damage to the environment as to indicate an intent not to <br />comply with the provisions of the Act [2.07.6(2)(h)]. <br />21