2 Colo. Code Regs. § 407-2-2

Current through Register Vol. 47, No. 24, December 25, 2024

Rule 2 CCR 407-2-2 - PERMITS

2.01GENERAL REQUIREMENTS

2.01.1Scope.

This Section establishes the minimum general requirements for permits required to commence or continue surface coal mining and reclamation operations. The objectives of this Section are to insure that all persons make timely application for permits, and that all surface coal mining and reclamation operations are conducted only under permits issued in accordance with the requirements of the Act and these Rules.

2.01.2General Requirements for Existing Operations.

Not later than two months following the date of approval of the Colorado regulatory program by the Secretary, all operators who are conducting and intend to conduct surface coal mining operations eight months after such approval, shall file an application for a permit with the Division for such operations. The application shall comply with all applicable provisions of Rules 2 and 4. With regard to the requirements of 2.05.6(3)(b)(iv), the application shall be considered filed if it contains all applicable hydrologic information reasonably available to the applicant as of the date of the application.

2.01.3General Requirements for Permits for All Surface Coal Mining and Reclamation Operations.

(1) Except as provided for in 2.01.3(2) and 2.01.3(5), on and after eight months from the date on which the Colorado regulatory program is approved by the Secretary of the Interior, which date is set forth by Rule of the Board, no person shall conduct, on lands within this State, any surface coal mining and reclamation operations unless such person has first obtained a valid permit issued under the applicable provisions of these Rules. Obligations established under a permit continue until completion of surface coal mining and reclamation operations, regardless of whether the authorization to conduct surface coal mining operations has expired or has been terminated, revoked, or suspended.

(2) A person conducting surface coal mining and reclamation operations, under a permit issued or amended by the Division in accordance with requirements of the "Colorado Mined Land Reclamation Act" (Section 34-33-101, C.R.S.) and the Rules and Regulations promulgated therewith and operating in compliance with Section 502 of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95-87), as determined by the Division, may conduct these operations beyond the period prescribed in (1) above, if: 109(3)

(a) a complete application for a permit has been filed with the Division in accordance with the applicable provisions of Rules 2 and 4; and

(b) The Division has not yet rendered an initial decision with respect to such application.

(3) If prior to the date of approval by the Secretary of the Colorado regulatory program, a person has filed with the Division an application for a permit in compliance with the Colorado Mined Land Reclamation Act," and Section 502 of the "Surface Mining Control and Reclamation Act" of 1977 (P.L. 95-87), as determined by the Division, the Board or Division shall, unless such application is withdrawn, act on such application in accordance with the "Colorado Mined Land Reclamation Act" and Section 502 of the "Surface Mining Control and Reclamation Act" of 1977 (P.L. 95-87); except that in no event shall such person be relieved of the obligation to obtain a permit as required by Section 34-33-109(1) of the Act, 2.01.3(1), and P.L. 95-87.

(4) Except as provided for in 2.01.3(2) and 2.01.3(5), no person conducting, or intending to conduct, surface coal mining and reclamation operations shall be relieved of the obligation to obtain a permit as required by 2.01.3(1) and the "Surface Mining Control and Reclamation Act" of 1977 (P.L. 95-87).

(5) The operator of any surface coal mining and reclamation operation on Federal land, whose permit application and mining and reclamation plan have been approved by the Board or Division and the Federal Office of Surface Mining under the permanent Federal regulatory program, prior to the approval of the Colorado regulatory program by the Secretary, shall be considered to have satisfied the permit requirements of this Rule and need not submit another application for a permit or permit revision within the two months following the initial approval of the Colorado regulatory program, provided, however, that:

(a) Proposed revisions and modifications of said permit must be submitted within twelve months of the approval by the Secretary of the Colorado regulatory program.

(b) Revisions or modifications of said permit are made to reflect substantive differences between the Colorado regulatory program and the Federal regulatory program; and

(c) All requirements of the Act and 2.07, pertaining to public participation and notification, are complied with.

(6) No permit shall be required for reclamation operations on abandoned or unreclaimed lands not required to be reclaimed under State or Federal law. 109(1)

2.01.4Permit Requirements for New Surface Coal Mining and Reclamation Operations.

Each person who expects to conduct new surface coal mining and reclamation operations within the eight month period following approval of the Colorado regulatory program shall file a complete application for a permit in accordance with applicable provisions of Rules 2 and 4. 109(1),(2)

2.01.5Permit Term.

(1) All permits issued pursuant to the requirements of the Act and these Rules shall be issued for a term not to exceed five years. The term shall commence upon the acceptance of the performance bond by the Division. The Board or Division may grant a permit for a longer term if the applicant demonstrates that: 109(5)

(a) A specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation; and this need is confirmed in writing by the applicant's source for the financing, and

(b) The application is full and complete for the specified longer term.

(2)

(a) A permit shall terminate if the permittee has not commenced the surface coal mining and reclamation operations covered by the permit within three years of the date of the issuance of the permit. 109(6)

(b) The Division or Board may grant reasonable extensions of time for commencement of these operations, upon receipt of a written statement showing that such extensions of time are necessary, if: 109(6)

(i) Litigation precludes commencement or threatens substantial economic loss to the permittee, or

(ii) There are conditions beyond the control of and without the fault or negligence of the permittee.

(c) With respect to coal to be mined for use in a synthetic fuel facility or specified major electric generating facility, the permittee shall be deemed to have commenced surface coal mining operations at the time that the construction of the synthetic fuel or generating facility is initiated. 109(6)

(d) In the case of a coal lease issued under the "Federal Mineral Lands Leasing Act, as amended," extensions of time may not extend beyond the period allowed for diligent development in accordance with Section 7 of that Act. 109(6)

(e) Extensions of time granted by the Division or Board under 2.01.5(2)(b) shall be specifically set forth in the permit and notice of the extension shall be made to the public. 102, 110(8) 118(1)

2.01.6Permit Fees.

(1) Each application for a surface coal mining and reclamation permit pursuant to these Rules shall be accompanied by a fee of twenty-five dollars, plus ten dollars for each acre of affected land.

(2) The permit fee shall not exceed two thousand five hundred dollars and shall not exceed the actual or anticipated cost of reviewing, administering, and enforcing such permit issued pursuant to these Rules.

(3) The cost of the fee may be paid over the term of the permit. The incremental permit fee payment shall not be less than twenty percent of the total permit fee.

(4) All fees collected under this Rule shall be deposited in the general fund.

2.02GENERAL REQUIREMENTS FOR COAL EXPLORATION

2.02.1 Scope.

This section establishes the requirements for coal exploration outside an approved permit area and is intended to ensure that such exploration is conducted in a manner that protects the environment and complies with these rules. These requirements include filing notices of intention when 250 tons or less of coal will be removed during exploration, applying for written approval when more than 250 tons of coal will be removed during exploration; complying with coal exploration and reclamation standards, and ensuring public availability of coal exploration information. 117

2.02.2Exploration Involving Removal of 250 Tons or Less of Coal.

(1) Any person who intends to conduct coal exploration during which 250 tons or less of coal will be removed from the area to be explored outside an approved permit area shall, prior to conducting the exploration, file with the Division a complete written notice of intention to explore. Exploration which will take place on lands designated as unsuitable for surface coal mining operations under Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e) shall be subject to the permitting requirements of Rule 2.02.3 . Exploration conducted under a notice of intent shall be subject to the requirements of Rule 2.02.6.

(2) The complete notice shall include: 117(1)(a)

(a) The name, address, and telephone number of the person seeking to explore;

(b) The name, address, and telephone number of the representative who will be present at and responsible for conducting the exploration activities;

(c) A narrative description and map, at a scale of 1:24,000, or larger if requested by the Division, of the exploration area;

(d) A statement of the period of intended exploration; 117(1)(a)

(e) If the surface is owned by a person other than the person who intends to explore, a description of the basis upon which the person who will explore claims the right to enter such area for the purpose of conducting exploration and reclamation;

(f) A narrative description of the practices proposed to be followed to protect the environment from adverse impacts as a result of the exploration activities;

(g) A narrative description of the methods to be used to conduct coal exploration and reclamation, including, but not limited to, the types and uses of equipment, drilling, surface blasting, road or other access route construction, excavated earth and other debris disposal activities, and other information set forth in Rule 1.04 . The description shall set forth the maximum number of drill holes the person conducting the exploration intends to drill within each quarter-quarter section (40AC.); and 117(5)

(h) A statement, with appropriate references from the relevant State or Federal agencies or published sources, which determines that the exploration and reclamation described will not jeopardize the continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) or the Nongame, Endangered or Threatened Species Conservation Act (Section 33-8-101et seq. C.R.S.) or result in the destruction or adverse modification of critical habitat of those species. 102, 117(5)

(3) The Division shall review the complete notice of intention to conduct coal exploration and shall make a determination within two weeks of the filing of such complete notice, whether the proposed exploration will substantially disturb the natural land surface, and if so whether the proposed activity qualifies as coal exploration or surface coal mining operations. The Division shall immediately notify the person in writing of its determination. The determination of substantial disturbance shall be made with reference to 1.04(127). If the Division determines that the proposed coal exploration activities will substantially disturb the natural land surface, the person who intends to conduct such coal exploration shall comply with 4.21.

(4) If the Division determines that the proposed coal exploration activities qualify as surface coal mining operations, the application shall be returned to the person with the written determination. The person shall be informed of his rights to appeal such determination and that conduct of any activities included in the application are prohibited until a valid mining and reclamation permit is obtained.

(5) A determination by the Division that substantial disturbance of the natural land surface by exploration with removal of 250 tons or less will require that the person who proposes to conduct the coal exploration post a performance bond prior to initiation of exploration according to the requirements set forth in 3.05. 102, 117(5)

(6) Within 30 days after the notification required by 2.02.2(3) above, any person with an interest which is or may be adversely affected may request a formal hearing on the reasons for the decision by the Division. Such request shall be in writing and state with reasonable specificity the reasons for the request and objections to the decision. If so requested, the formal hearing shall be conducted in accordance with the requirements of 2.07.4(3).

(7) No person shall conduct coal exploration activities under 2.02.2 until they have received notification of the Division's determination on substantial disturbance and qualifications as coal exploration.

2.02.3General Requirements: Exploration Involving Removal of More Than 250 Tons of Coal or Occurring on Lands Designated as Unsuitable for Surface Coal Mining

Any person who intends to conduct coal exploration in which more than 250 tons of coal are removed in the area to be explored outside an approved permit area or who wishes to conduct coal exploration within an area which has been designated unsuitable for all or certain types of surface coal mining operations or Occurring on Lands Designated as Unsuitable for Surface Coal Mining shall, prior to conducting the exploration, obtain the written approval of the Board or Division, in accordance with the following:

(1) Contents of complete application for approval. Each application shall contain, at a minimum, the following information:

(a) The name, address, and telephone number of the applicant;

(b) The name, address, and telephone number of the representative of the applicant who will be present at and be responsible for conducting the exploration;

(c) An exploration and reclamation plan, including:

(i) A narrative description of the proposed exploration area, cross referenced to the map required under (e) below, including surface topography, geology, surface water, and other physical features; vegetative cover; the distribution and important habitats of fish, wildlife, and plants, including, but not limited to, an endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (16 U.S.C. Sec. 1531et seq.) or the Nongame, Endangered or Threatened Species Conservation Act (Section 33-8-101et seq., C.R.S.); Designated Natural Areas, National Natural Landmarks, districts, sites, buildings or structures or objects listed on or known to be eligible for listing on the National Register of Historic Places; known archaeological resources located within the proposed exploration area; and any other information that may be required regarding historic or archaeological resources;

(ii) A narrative description of the methods to be used to conduct coal exploration and reclamation, including, but not limited to, the types and uses of equipment, drilling, blasting, road or other access route construction, and excavated earth and other debris disposal activities; such uses and activities shall be in compliance with the applicable requirements of these Rules. For the proposed drill holes, the maximum number of holes located within each quarter-quarter section (40AC.), cross referenced to map location, and their size and depth;

(iii) An estimated timetable for conducting and completing each phase of the exploration and reclamation;

(iv) The estimated amounts of coal to be removed and a description of methods to be used to determine those amounts;

(v) A description of the measures to be used to comply with the applicable requirements of Rule 4.21.

(vi) If more than 250 tons are to be removed, a statement of why extraction of more than 250 tons of coal is necessary for exploration.

(d) The name and address of the owner of record of the surface land and of the subsurface mineral estate of the area to be explored;

(e) A map at a scale of 1:24,000, or larger if requested by the Division, showing the areas of land to be substantially disturbed by the proposed exploration and reclamation. The map shall specifically show existing roads, occupied residential dwellings, and pipelines; proposed location of trenches, roads, and other access routes and structures to be constructed; the location of land excavations to be conducted within each quarter-quarter section (40AC.); water and coal exploratory holes to be drilled or altered within each quarter-quarter section (40AC.); earth or debris disposal areas; existing bodies of surface water; historic, topographic, cultural and drainage features; and habitats of any endangered or threatened species listed pursuant to the Endangered Species Act of 1973 (U.S.C. 1531 et seq.), the Nongame, Endangered or Threatened Species Conservation Act (Section 33-8-101 et seq., C.R.S. as amended), Designated Natural Areas, National Natural Landmarks; and

(f) If the surface is owned by a person other than the applicant, a description of the basis upon which the applicant claims the right to enter the land for the purpose of conducting exploration and reclamation.

(g) For any lands listed in Rule 2.07.6, a demonstration that, to the extent technologically and economically feasible, the proposed exploration activities have been designed to minimize interference with the values for which those lands were designated as unsuitable for surface coal mining operations. The application must include documentation of consultation with the owner of the feature causing the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), and, when applicable, with the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(2) Public notice and opportunity to comment. Public notice of the application and opportunity to comment shall be provided as follows:

(a) Within five days of the filing of the complete application, a public notice of the filing of the application with the Division shall be posted at the Division office and advertised once by the applicant in a newspaper of general circulation in the county of the proposed exploration area.

(b) The public notice shall state the name and business address of the person seeking approval, the date of filing of the application, the address of the Division at which written comments on the application may be submitted, the closing date of the comment period, and a description of the general area of exploration.

(c) Any person with an interest which is or may be adversely affected shall have the right to file written comments on the application within 2 weeks after the requirements of (a) above are met.

2.02.4Applications: Approval or Disapproval of Exploration Involving Removal of More Than 250 Tons of Coal or Occurring on Lands Designated as Unsuitable for Surface Coal Mining

(1) Within two weeks of receipt of a completed application, the Division will notify the applicant as to whether a proposed activity qualifies as coal exploration or surface coal mining and reclamation operations. If the Division determines that the proposed coal exploration activities qualify as surface coal mining operations, the application shall be returned to the person with the written determination. The person shall be informed of his rights to appeal such a determination and that conduct of any activities included in the application are prohibited until a valid mining and reclamation permit is obtained.

(2) The Board or Division shall act upon a completed application within 60 days of filing, but no sooner than the expiration of the 2 week public comment period. 117(4),(5)

(3) The Board or Division shall approve a completed application filed in accordance with 2.02 if it finds, in writing, that the applicant has demonstrated that the exploration and reclamation described in the application:

(a) Will be conducted in accordance with 2.02, the Act, and these Rules;

(b) Will not jeopardize the continued existence of an endangered or threatened species listed pursuant to Section 4 of the Endangered Species Act of 1973 (16 U.S.C. 1533) or the Nongame, Endangered or Threatened Species Conservation Act (Section 33-8-101et seq., C.R.S.), or result in the destruction or adverse modification of critical habitat of those species; and

(c) Will not adversely affect any National Natural Landmarks, Designated Natural Area or any cultural resources or districts, sites, buildings, structures, or objects listed on the National Register of Historic Places, unless the proposed exploration has been jointly approved by the Division and the State or Federal agency having jurisdiction in such matters.

(d) With respect to exploration activities on any lands protected under Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), minimize interference, to the extent technologically and economically feasible, with the values for which those lands were designated as unsuitable for surface coal mining operations. Before making this finding, the Division must provide reasonable opportunity to the owner of the feature causing the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), and, when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), to comment on whether the finding is appropriate.

(4) Terms of approval. Each approval issued by the Board or Division shall contain conditions necessary to ensure that the exploration and reclamation will be conducted in compliance with the Act and these Rules.

(5) Upon approval by the Board or Division but prior to initiating exploration the applicant shall post a reclamation performance bond pursuant to 3.05.

2.02.5Applications: Notice and Hearing for Exploration Involving Removal of More Than 250 Tons of Coal or Occurring on Lands Designated as Unsuitable for Surface Coal Mining

(1) The Board or Division shall notify the applicant, the appropriate local government officials and any other commenters on the application, in writing, of its decision to approve or disapprove the application. If the application is disapproved, the notice to the applicant shall include statement of reason for disapproval. The Division or Board shall provide public notice of approval or disapproval of each application, by publication in a newspaper of general circulation in the general vicinity of the proposed operations.

(2) Any person with an interest which is or may be adversely affected by a decision of the Board or Division pursuant to (1) above, shall have the opportunity for administrative and judicial review in accordance with Colorado law and as referenced at 2.07.4(3).

2.02.6General Coal Exploration Compliance Duties.

(1) Any person who conducts any coal exploration activities which cause substantial disturbance of the natural land surface as determined by the Division, in violation of these Rules or the Act, shall be subject to the provisions of Rule 5. 117(3),(5)

(2) The Division may request, and any person who conducts any coal exploration activities shall furnish to the Division, sufficient information to facilitate the Division's investigation of possible environmental damage or complaints submitted to the Division. Such requested information may include but need not be limited to stratigraphic findings, test hole logs and related data. 117(5)

(3) Any person conducting coal exploration activities which the Division has determined will cause substantial disturbance of the natural land surface or which will involve the removal of more than 250 tons of coal shall submit:

(a) A report for each successive 180-day period during coal exploration activities, no later than 10 days after the end of that period. A report will not be required for 180-day periods of inactivity. Such reports shall include, but need not be limited to, an update of the map submitted under 2.02.3(1)(e), showing the location of all holes drilled; additional, deleted or relocated holes; any road construction; current location of all drill rigs and test equipment; and areas disturbed, graded and seeded.

(b) A final written report, no later than 30 days after the end of the entire period for which notice of intent was filed or written approval was granted, to include but not necessarily limited to:

(i) A final update of the map submitted in 2.02.3(1)(e) showing the location of all holes drilled, any road construction, areas disturbed and all areas reclaimed.

(ii) A certification of completion by the person who conducted the coal exploration as follows: "I, the undersigned, hereby certify the exploration activities for which I posted bond are completed, and that, to the best of my knowledge, all the applicable reclamation requirements have been met." The certification shall be dated, signed and notarized.

(4) Time estimates for coal exploration may be extended by the Board or Division upon receipt of a written request for such extension. This request shall be submitted to the Division no less than 10 days prior to the original estimate of completion contained in the original approval or subsequent extension. Such request shall include valid reasons for the extension. 117(5)

2.02.7Sale of Coal for Testing Purposes

(1) Except as provided under (2), any person who intends to commercially use or sell coal extracted during coal exploration operations under an exploration permit, shall first obtain a permit to conduct surface coal mining operations for those operations.

(2) With the prior written approval of the Division, no permit to conduct surface coal mining operations is required for the sale or commercial use of coal extracted during exploration operations if such sale or commercial use is for coal testing purposes only. The person conducting the exploration shall file an application for such approval with the Division. The application shall demonstrate that the coal testing is necessary for the development of a surface coal mining and reclamation operation for which a surface coal mining permit application is to be submitted in the near future, and that the proposed commercial use or sale of coal extracted during exploration operations is solely for the purpose of testing the coal. The application shall contain the following:

(a) The name of the testing firm and the locations at which the coal will be tested.

(b) If the coal will be sold directly to or commercially used directly by the intended end user, a statement from the intended end user or, if the coal is sold indirectly to the intended end user through an agent or broker, a statement from the agent or broker. The statement shall include:

(i) The specific reason for the test, including why the coal may be so different from the intended user's other coal supplies as to require testing;

(ii) The amount of coal necessary for the test and why a lesser amount is not sufficient; and

(iii) A description of the specific test that will be conducted.

(c) Evidence that sufficient reserves of coal are available to the person conducting exploration or its principals for future commercial use or sale to the intended end user or agent or broker of such user identified above to demonstrate that the amount of coal to be removed is not the total reserve, but is a sampling of a larger reserve.

(d) An explanation as to why other means of exploration, such as core drilling, are not adequate to determine the quality of the coal and/or the feasibility of developing a surface coal mining operation.

2.02.8Public Availability of Information.

(1) Except as provided in (2) below, all information submitted to the Division under 2.02 shall be made available for public inspection and copying at the courthouse or other public office designated by the Division in the vicinity of the proposed exploration area and at the Division office. 117(5)

(2)

(a) Information submitted to the Division pursuant to this Rule 2.02 as confidential concerning trade secrets or privileged commercial or financial information which relates to the competitive rights of the person or entity intending to explore the described area shall not be available for public examination. Such information shall be clearly marked and submitted in a packet separate from the notice of intent or application.

(b) Information requested to be held as confidential under 2.02.7 shall not be made publicly available until after notice and opportunity to be heard is afforded both persons seeking disclosure and those persons opposing disclosure of information and such information is determined by the Division not to be confidential, proprietary information. 117(2)

Information for which disclosure is sought shall not be made available to those persons seeking disclosure prior to or during such opportunity to be heard. Such information shall not be made available until a final decision is made by the Board.

2.03APPLICATION FOR PERMIT FOR SURFACE COAL MINING AND RECLAMATION OPERATIONS: MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE AND RELATED INFORMATION

2.03.1Objective.

The objective of 2.03 is to ensure that the Division receives all relevant information regarding ownership and control of surface coal mining operations, the ownership and control of the property to be affected by those operations, the compliance history and status of the applicant and other relevant persons, and other important information required in the application.

2.03.2 Responsibilities.

It is the responsibility of the permit applicant to provide to the Division a written application to perform surface coal mining and reclamation operations.

2.03.3Format and Supplemental Information.

(1) Information in the application shall be current, presented clearly and concisely, and supported by appropriate references to technical and other written material available to the Division. 110

(2) All tests, analyses or surveys carried out pursuant to these Rules shall be performed or certified by a qualified person.

(3) All chemical and physical laboratory analyses shall be conducted by a laboratory using approved and standardized procedures. The Division may require the applicant to collect duplicate or split samples for submission to the Division and later analyses. In specific instances the Division may require that analyses be conducted by a mutually agreed upon independent laboratory.

(4) All water quality sampling and laboratory analyses shall be conducted in accordance with the current edition of "Standard Methods for the Examination of Water and Wastewater", or the methodology in 40 CFR 136 and 434. "Standard Methods for the Examination of Water and Wastewater" is a joint publication of the American Public Health Association, the American Water Works Association, and the Water Pollution Control Federation and is available from the American Public Health Association. This document is also available for inspection at the Division's Denver office.

This publication is hereby incorporated by reference as it exists on the date of adoption of these regulations. This rule does not include later amendments to or editions of the incorporated material. Certified copies of the material are available at cost upon request. The Division director can provide further information regarding how the incorporated material may be obtained or examined.

(5) All technical data submitted in the application shall be accompanied by:

(a) Names of persons or organizations which collected and analyzed such data;

(b) Dates of collection and analyses; and

(c) Descriptions of methodology used to collect and analyze the data.

(6) An application for a surface coal mining and reclamation permit shall be made on forms provided by the Division.

(7) With the information on land uses, soils, geology, vegetation, fish and wildlife, water quantity and quality, air quality, and archeological, cultural and historic features, the applicant shall submit the name, address, and position of officials of each private or academic research organization or governmental agency consulted in obtaining that information.

(8) The applicant shall file with the Division three (3) reproducible copies of the complete permit application with original signatures. Applicants proposing to mine Federal coal shall file the required number of copies with the Office of Surface Mining.

(9) A responsible official of the applicant shall certify that the information contained in the application is true and correct to the best of the official's information and belief.

(10) The applicant for a permit or revision of a permit shall have the burden of establishing that the application is in compliance with all the requirements of these Rules and the Act.

2.03.4 Identification of Interests.

Each application shall contain the following information.

(1) Each application shall contain a statement of whether the applicant is a corporation, partnership, single proprietorship, association or other business entity.

(2) The name, address, telephone number and taxpayer identification number of the:

(a) Applicant;

(b) Any operator, if different from the applicant;

(c) Applicant's resident agent; and

(d) Each business entity in the applicant's and operator's organizational structure, up to and including the ultimate parent entity of the applicant and operator; for every such business entity, the application shall also include the required information for every president, chief executive officer, and director (or other persons in similar positions) and every person who owns, of record, 10 percent or more of the entity.

(3) a list of all names under which the applicant, operator, and partners or principal shareholders of the applicant or operator operate or previously operated a surface coal mining operation in the United States within the five-year period preceding the date of submission of the application.

(a) For any surface coal mining operations that the applicant or operator owned or controlled within the five-year period preceding the date of submission of the application, and for any surface coal mining operation the applicant or operator own or control on that date:

(i) The person's name, address, and taxpayer identification number;

(ii) The person's ownership or control relationship to the operation, including percentage of ownership and location in organizational structure;

(iii) The title of the person's position, date position was assumed, and when submitted under 2.07.7(5), date of departure from the position;

(iv) the operation's Federal or State permit number, the regulatory authority with jurisdiction over the permit, and MSHA number with date of issuance; and

(b) For the applicant and the operator, the applicant must provide the application number and jurisdiction or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the applicant or operator in any state in the United States.

(4) For any surface coal mining operation owned or controlled by the applicant or operator, every officer, partner, member, or director of the applicant or operator, person performing a function similar to a director, Person who owns, of record, 10 percent or more of the applicant or operator, or by any person who owns or controls the applicant or operator under the definition of " own, owner, or ownership" in Rule 1.04 (83.1), the entity's:

(a) Name, address, telephone number, identifying numbers, including employer identification number, Federal or State permit number, the regulatory authority, MSHA number, and the date of issuance of the MSHA number;

(b) Ownership or control relationship to the applicant, including percentage of ownership and location in organizational structure; and

(c) The date the entity began functioning in that position.

(5) After an applicant is notified that his or her application is approved, but before the permit is issued, the applicant shall, as applicable, update, correct or indicate that no change has occurred in the information previously submitted under 2.03.4(1) through (4).

(6) Each permit application shall contain the names and addresses of:

(a) Every legal or equitable owner of record of the property to be mined by surface coal mining activities, or for underground mining activities, areas to be affected by surface operations and facilities incidental thereto, and every legal or equitable owner of record of the coal to be mined;

(b) The holders of record of any leasehold interest in the property to be mined by surface coal mining activities, or for underground mining activities, area to be affected by surface operations and facilities incidental thereto, and any holders of record of any leasehold interest in the coal to be mined;

(c) Any purchaser of record under a real estate contract of the property to be mined by surface coal mining activities or for underground mining activities, areas affected by facilities incidental thereto, and any purchaser of record under a real estate contract of the coal to be mined;

(7) Each application shall contain the names and addresses of the owners of record of all surface and subsurface areas contiguous to any part of the proposed permit area.

(8) Each application shall contain the name of the proposed mine and the Mine Safety and Health Administration identification number for the mine and all structures that require MSHA approval, if any.

(9) Each application shall contain a statement of all lands, interests in lands, options, or pending bids on interests held or made by the applicant for lands which are contiguous to the area to be covered by the permit. Information required by this paragraph may be considered confidential for purposes of these rules if the requirements of 2.07.5 are met.

(10) The Division need not make a finding as provided for under Rule 2.07.9 before entering into AVS the information required to be disclosed under this section; however, the mere listing in AVS of a person identified in paragraph (3) or (4) of this Rule does not create a presumption or constitute a determination that such person owns or controls a surface coal mining operation. Challenges of information listed in AVS may be pursued as set forth in Rule 2.11.

(11) Based on a complete permit application, the division will conduct the reviews required under RULES 2.03.4, 2.03.4, and 2.03.4 (12)(b)(ii). The Division will enter into AVS:

(a) The information submitted under Rule 2.03.4.

(b) The information submitted under Rule 2.03.5 pertaining to violations which are unabated or uncorrected after the abatement or correction period has expired.

The Division will update the information referred to in this rule in AVS upon verification of any additional information submitted or discovered during the permit application review.

(12)

(a) The Division will rely upon the information submitted under Rule 2.03.4, information from AVS, and any other available information to review the permittee's and operator's organizational structure and ownership or control relationships. This review will be conducted before the Division can make a permit eligibility determination under Rules 2.07.6(1)(b) and 2.07.6(2)(g).

(b)

(i) The Division will rely upon the permit history information submitted under Rule 2.03.4, information from AVS, and any other available information to review The permittee's and operator's permit histories. The Division will conduct this review before making a permit eligibility determination under Rule 2.07.6(2)(g).

(ii) The Division will also determine if the permittee or operator has previous mining experience. If the permittee or operator does not have any previous mining experience, the Division may conduct an additional review under Rule 2.07.9 . The purpose of this review will be to determine if someone else with mining experience controls the mining operation.

2.03.5Compliance Information.

(1) Each application shall contain:

(a) A statement of whether the applicant, permittee, operator, any subsidiary, affiliate, or entity owned or controlled by or under common control with the applicant, permittee or operator, has:

(i) Had a Federal or State mining permit for surface coal mining operations suspended or revoked in the last five years prior to the date of submission of the application; or

(ii) Forfeited a performance bond or similar security deposited in lieu of bond in connection with surface coal mining and reclamation operations during the five-year period preceding the date of submission of the application.

(b) If any such suspension, revocation or forfeiture has occurred, a statement of the facts involved, including:

(i) Identification number and date of issuance of the permit or date and amount of bond or similar security;

(ii) Date of suspension, revocation, or forfeiture;

(iii) Identification of the authority that suspended or revoked a permit or forfeited a bond and the stated reasons for that action;

(iv) The current status of the permit, bond, or similar security involved;

(v) The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation or forfeiture; and

(vi) The current status of these proceedings.

(c) A list of all violation notices received by the applicant during the three year period preceding the application date, for any violation of a provision of the Act, or of any law, rule or regulation of the United States, or of any State law, rule or regulation enacted pursuant to Federal law, rule or regulation pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, and a list of all unabated cessation orders and unabated air and water quality violation notices received prior to the date of the application by any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant. For each violation notice or cessation order reported, the lists shall include the following information, as applicable:

(i) Any identifying numbers for the operation, including the Federal or State permit number and MSHA number, the dates of issuance of the violation notice and MSHA number, the name of the person to whom the violation notice was issued, and the name of the issuing regulatory authority, department or agency;

(ii) A brief description of the particular violation alleged in the notice;

(iii) The date, location and type of any administrative or judicial proceedings initiated concerning the violation, including, but not limited to, proceedings initiated by the applicant to obtain administrative or judicial review of the violations;

(iv) The current status of the proceedings and of the violation notice;

(v) The actions, if any, taken by the applicant to abate the violation; and

(vi) The final resolution of any notice of violation.

(2) The Division will rely upon the violation information supplied by the permittee under Rule 2.03.5, a report from AVS, and any other available information to review histories of compliance with the Act or the applicable State regulatory program, and any other applicable air or water quality laws for:

(a) the Permittee;

(b) the Operator;

(c) Operations owned or controlled by the permittee; and

(d) Operations owned or controlled by the operator.

This review will be conducted before the Division can make a permit eligibility determination under Rule 2.07.6(1)(b) and 2.07.6(2)(g).

(3)

(a) If the applicant has previously applied for a permit and the required information is already in AVS, the applicant may update the information required under this rule as follows:

(i) If all or part of the information already in AVS is accurate and complete, then the applicant may certify to the Division by swearing or affirming, under oath and in writing, that the relevant information in AVS is accurate, complete, and up to date.

(ii) If Part of the information in AVS is missing or incorrect then the applicant must submit to the Division the necessary information or corrections and swear or affirm, under oath and in writing, that the information the applicant submits is accurate and complete.

(iii) If the applicant can neither certify that the data in AVS is accurate and complete nor make needed corrections, then the applicant must include in the permit application the information required under this rule.

(b) The applicant must swear or affirm, under oath and in writing, that all information provided in an application is accurate and complete.

(c) The Division may establish a central file to house an applicant's identity information, rather than place duplicate information in each of the permit application files. The Division will make the information available to the public upon request.

(4) After an applicant is notified that his or her application is approved, but before the permit is issued, the applicant shall, as applicable, update, correct or indicate that no change has occurred in the information previously submitted under this section.

2.03.6Right of Entry and Operation Information.

(1) Each application shall contain a complete and detailed legal description of the proposed permit boundary, a description of the documents upon which the applicant bases his or her legal right to enter and begin surface coal mining operations in the permit area, and a statement as to whether that right is the subject of pending litigation. The description shall identify those documents by type and date of execution, identify the specific lands to which the document pertains, and explain the legal rights claimed by the applicant. 110(2)(j)

(2) Where the private mineral estate to be mined has been severed from the private surface estate (in circumstances involving the surface mining of coal or where underground mining activities concurrently involve the surface mining of coal) the application shall also provide, for lands to be affected within the permit area: 114(2)(e)

(a) A copy of the written consent of the surface owner to the extraction of coal by surface mining methods; or 114(2)(f)(I)

(b) A copy of the document of conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or 114(2)(f)(II)

(c) If the conveyance does not expressly grant the right to extract the coal by surface mining methods, documentation that under the applicable State law, the applicant has the legal authority to extract the coal by these methods. 114(2)(f)(II)

(3) Nothing in 2.03 shall be construed as vesting in the Division or Board the jurisdiction to adjudicate property right disputes. 110(2)(j)114(2)(f)(II)

2.03.7Relationship to Areas Designated Unsuitable for Mining

(1) Each application shall contain a statement of available information on whether the proposed permit area is within an area designated unsuitable for surface coal mining operations under Rule 7 of these Rules or 30 CFR 764 and 769 or under study for designation in an administrative proceeding under Rule 7 or 30 CFR 764 and 769. 114(2)(d)

(2) If an applicant claims the exemption described in 7.02(3), the application shall contain information supporting the assertion that the applicant has made substantial legal and financial commitments, in relation to the operation for which he or she is applying for a permit, prior to January 4, 1977. If the applicant has previously obtained a finding of the Secretary of the Interior or the Division Director acknowledging valid existing rights, or is in the process of applying for a valid existing rights determination on federal lands, the disposition of those proceedings shall be included in the application.

(3) If an applicant proposes to conduct surface mining activities or conduct or locate surface operations or facilities within 300 feet measured horizontally of an occupied residential dwelling, the application shall contain the written waiver of the owner of the dwelling which states that the owner and signatory had the legal right to deny mining and knowingly waived that right. The waiver must be knowingly made and separate from a lease or deed unless the lease or deed contains an explicit waiver.

2.03.8Permit Term Information.

(1) Each application for surface mining activities shall state the anticipated or actual starting and termination date of each phase of the surface mining activities and the anticipated number of acres of land to be affected for each phase of mining and over the total life of the permit. 110(2)(i)

(2) Each application for underground mining activities shall state the anticipated or actual starting date and termination date of each phase of the underground mining activities and the anticipated number of acres of surface lands to be affected, and the horizontal and vertical extent of proposed underground mine workings, for each phase of mining and over the total life of the permit.

(3) If the applicant proposes to conduct the surface or underground mining activities in excess of 5 years, the application shall contain the information needed for the showing required under 2.01.5.

2.03.9Personal Injury and Property Damage Insurance Information.

(1) Prior to issuance of a permit each applicant shall submit to the Division for inclusion in the permit application, a certificate certifying that the applicant has a public liability insurance policy in force for the surface coal mining and reclamation operation for which the permit is sought. The certificate shall provide for personal injury and property damage protection in an amount adequate to compensate any persons injured or property damaged as a result of surface coal mining and reclamation operations, including use of explosives, and entitled to compensation under the applicable provisions of State law. Minimum insurance coverage for bodily injury shall be $300,000 for each occurrence and $500,000 aggregate; and minimum insurance coverage for property damage shall be $300,000 for each occurrence and $500,000 aggregate. 110(5)

(2) The policy shall be maintained in full force during the life of the permit and any renewal thereof, including completion of all reclamation operations under Rule 4.

(3) The policy shall include a rider requiring that the insurer notify the Division whenever substantive changes are made in the policy, including any termination or failure to renew.

(4) The Division may accept from the applicant, in lieu of a certificate for public liability insurance policy, satisfactory evidence from the applicant that it has satisfied applicable State or Federal self-insurance requirements.

2.03.10Identification of Other Licenses and Permits.

Each application shall contain a list of all other licenses and permits needed by the applicant to conduct the proposed surface or underground mining activities. This list shall identify each license and permit by: 110(8)

(1) Type of permit or license;

(2) Name and address of issuing authority;

(3) Identification numbers of applications for those permits or licenses, or, if issued, the identification numbers of the permits or licenses; and

(4) If a decision has been made, the date of approval or disapproval by each issuing authority.

2.03.11Identification of Location of Public Office for Filing of Application.

Each application shall identify, by name and address, the public office where the applicant will simultaneously file a copy of the application for public inspection under 2.07.3(4). 110(2)(g)

2.03.12Newspaper Advertisement and Proof of Publication.

A copy of the newspaper advertisement of the application and proof of the publication of the advertisement shall be filed with the Division and made a part of the complete application, not later than 4 weeks after the last date of publication required under 2.07.3(2). 110(2)(g)

2.04APPLICATION FOR PERMIT FOR SURFACE OR UNDERGROUND MINING ACTIVITIES - MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES

2.04.1Objectives.

The objectives of 2.04 are to ensure that each application provides the Division a complete and accurate description of the environmental resources that may be impacted or affected by proposed surface coal mining operations. 111

2.04.2Responsibilities.

(1) It is the responsibility of the applicant to provide, except where specifically exempted, all information required by 2.04 in the application.

(2) It is the responsibility of State and Federal government agencies to provide information for applications as specifically required by 2.04. 106(2)

2.04.3General Requirements: Site Description and Land Use Information.

(1) Each permit application shall include a description of the existing, pre mining environmental resources within the proposed permit area and adjacent areas that may be affected or impacted by the proposed surface or underground mining activities. 110(2)

(2) The application shall contain a statement of the condition, capability, and productivity of the land within the proposed permit area, except for underground mining which shall cover only those areas affected or to be affected by surface operations and facilities, including:

(a) A map, prepared according to the requirements of 2.10, and supporting narrative of the uses of the land existing at the time of the filing of the application, in accordance with land use categories established in the land use definition in 1.04. If the pre mining use of the land was changed within the five years prior to the date operations are proposed to begin, the historic use of the land shall also be described. 111(1)(b)(I,II,III)

(b) A narrative of land capability and productivity which analyzes the land-use description under 2.04.3(2) in conjunction with the other environmental resources information required under 2.04.3. The narrative shall provide analyses of:

(i) The capability of the land before any mining to support a variety of uses, giving consideration to soil and foundation characteristics, topography, vegetative cover and the hydrology of the proposed permit area; and 111(1)(b)(II)

(ii) The productivity of the proposed permit area before mining, expressed as average yield of food, fiber, forage, or wood products from such lands obtained under high levels of management. The productivity shall be determined by yield data or estimates for similar sites based on current data from the U.S. Department of Agriculture, State agricultural universities or appropriate State natural resources or agricultural agencies. 111(1)(b)(III)

(3) The application shall state whether the proposed permit area has been previously mined, and, if so, the following information, if available:

(a) The type and description of mining method used;

(b) The coal seams or other mineral strata mined;

(c) The extent of coal or other mineral removed;

(d) The approximate dates of past mining; and

(e) The uses of the land preceding mining.

(f) The location and extent of acreage disturbed by previous surface coal mining and reclamation operations.

(4) The application shall contain a description of the existing land uses and land use classification under local law, if any, of the proposed permit area and adjacent areas.

2.04.4Cultural and Historic Resource Information.

(1) The application shall contain a description of the cultural and historic resources listed or eligible for listing on the National Register of Historic Places and significant known archaeological sites existing on the date of application within all areas proposed or likely to be affected by surface activities or planned or probable subsidence over the life of the mine. The description shall be based on all available information, including, but not limited to, data of State and local archaeological, historical, and cultural preservation agencies. 110(2)(n)

(2) The Division may require the applicant, for good cause shown, to identify and evaluate important historic and archeological resources that may be eligible for listing on the National Register of Historic Places through collection of additional information, conducting of field investigations, or other appropriate analyses.

2.04.5 General Description of Hydrology and Geology

(1) Each application shall contain a description and map, prepared in accordance with Rule 2.10, of the geology, surface and ground water systems, including water quality and quantity, of all lands within the proposed permit area, the adjacent area, and the general area. The description shall include information on the characteristics of all surface and ground waters within the general area, and any water which will flow into or receive discharges of water from the general area. The description shall be prepared according to Rules 2.04.5 and 2.04.7, and conform to the following:

(a) Information on surface and groundwater systems including water quality, water quantity, and geology related to the hydrology of areas outside the permit area and within the general area shall be provided to the Division, to the extent that this data is available from an appropriate Federal or State agency. If this information is not available from those agencies, the applicant may gather and submit this information to the Division as part of the permit application.

(b) The permit shall not be approved by the Division until this information is made available in the application.

(2) The use of approved modeling techniques may be included as part of the permit application, but the same surface and ground water information may be required for each site as when models are not used.

(3) Permit applications may comply with the requirements of 2.04.5(1), 2.04.6(1)(a), 2.04.6(2)(a) and 2.04.7 by providing accurate descriptive and predictive information relating to geology, water quality and quantity for the area to be affected over the estimated life of the operation based upon extrapolation by an expert in the field from documented data on the geology, water quality and quantity of similar areas, provided that the data used by the expert is included within the permit application, the expert opinion is approved by the Division and all such data are made available to the public for review and comment.

2.04.6 Geology Description.

(1) General Requirements

The geology description shall include a description of the geology (stratigraphy and structure) within the proposed permit and adjacent areas. This description shall be sufficient in detail to:

(a) Define the relationship between structural geology and the occurrence, movement, quality and quantity of potentially impacted surface and ground water;

(b) Assist in determining the feasibility of the proposed reclamation plan;

(c) Assess the potential for off site material damage to the hydrologic balance;

(d) Assist in the preparation of the probable hydrologic consequence statement and the establishment of the hydrologic monitoring plan; and

(e) Assist in the preparation of the subsidence control plan under 2.05.6(6).

(2) Surface Mining

(a) The description shall include a general statement of the geology (stratigraphy and structure) within the proposed area to be affected over the life of the operation down to and including the first aquifer and other coal seams, if any, below the lowest coal seam to be mined. A geologic map with geologic cross-sections of the permit area, prepared in accordance with 2.10, shall accompany the descriptions and include the following: 110(2)(o) 110(2)(p), 110(7)

(i) Nature, depth, and thickness of the coal seams to be mined, any coal or rider seams above the seam to be mined, each stratum of the overburden, and the stratum immediately below the lowest coal seam to be mined;

(ii) The proposed permit area, including coal outcrops and the strike and dip of the coal to be mined;

(b)

(i) Test borings or core samples from the proposed permit area shall be collected and analyzed down to and including either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest coal seam to be mined which may be adversely affected by mining, whichever is deeper, in order to provide the following data in the description:

(A) Location of subsurface water zones, if encountered;

(B) Logs of drill holes, test borings or other sampling methods as approved by the Division showing the lithologic characteristics and thickness of each stratum and each coal seam;

(C) Physical properties of each stratum within the overburden and interburden including texture, overall swell, and other information sufficient to determine compatibility, erodability and an overall estimate of overburden and interburden swell;

(D) Chemical analysis of each stratum within the overburden and interburden and either the stratum immediately below the lowest coal seam to be mined or any aquifer below the lowest coal seam to be mined which may be adversely affected by mining, whichever is deeper, to identify, at a minimum, those horizons which contain potential acid-forming, toxic-forming, or alkalinity producing materials; and

(E) Analyses of the coal seam, including, but not limited to, an analysis of the sulfur, pyrite, and marcasite content.

(ii) Borehole spacing and physical and chemical analyses of core samples shall be determined in consultation with the Division.

(iii) If required by the Division, test borings, core samplings or samples obtained by other methods approved by the Division shall be collected and analyzed to greater depths within the proposed permit area, or for areas outside the proposed permit area to provide for evaluation of the impact of the proposed activities on the hydrologic balance.

(iv) An applicant may request that the requirement for a statement of the results of the test borings or core samples be waived by the Division. The waiver may be granted only if the Division makes a written determination that the statement is unnecessary because other equivalent information is accessible to it in a satisfactory form. The source(s) of such equivalent information shall be referenced in the Division's written determination and the information itself shall be made readily accessible by the Division for public review as required by 1.09 if such information has not been determined to be of a confidential nature in accordance with 2.02.7 and 2.07.5.

(3) Underground Mining

(a) The description shall include a general statement of the geology (stratigraphy and structure) within the proposed area to be affected over the life of the operation, down to and including the first aquifer, and coal seam, if any, below the lowest coal seam to be mined. The geology for the areas proposed to be affected by surface operations and facilities, those surface lands underlain by the coal to be mined, and the coal to be mined shall be separately described as follows including a map and cross sections prepared to the standards of Rule 2.10 which shows:

(i) Nature, depth, and thickness of the coal seams to be mined, any coal or rider seams above the seam(s) to be mined, each stratum of the overburden, and the stratum immediately below the lowest coal seam to be mined;

(ii) A geologic map with geologic cross sections of the proposed permit area, including coal crop lines and the strike and dip of the coal to be mined;

(iii) The geology for those surface lands within the permit area which are underlain by the coal seam to be extracted and the geology of the coal seam itself including:

(A) The logs of drill holes, test borings or other samples obtained by methods approved by the Division showing the lithologic characteristics, physical properties and thickness of each stratum which may be impacted;

(B) The location of subsurface water if encountered;

(C) Chemical analysis of the coal seam for acid-forming or toxic-forming materials including, but not limited to, the pyrite, marcasite and sulphur content;

(D) The chemical analysis of the stratum immediately above and below the coal seam to be mined or any other stratum to be affected, for acid-forming, toxic-forming, or alkalinity- producing materials and their content as determined by the Division; and

(E) For proposed room and pillar mining operations, the thickness and engineering properties of clays or clay shale, if any, in the stratum immediately above and below each coal seam to be mined.

(iv) The geology of the strata down to and including either the stratum immediately below any coal seam to be mined or any aquifer below the lowest coal seam to be mined which may be adversely affected by mining, whichever is deeper, shall be described for those areas to be affected by surface operations or facilities only in those cases where the strata will be removed or is already exposed down to the level of the coal seam to be mined, including the following data resulting from an analysis of test borings, core samples or outcrop samples:

(A) The location of subsurface water, if encountered, and the location of where subsurface water will be exposed at the face up area;

(B) The logs of drill holes, test borings, or other sampling methods as approved by the Division showing the lithologic characteristics of each strata to be affected;

(C) The physical properties of the strata immediately above and below the coal seam affected, including texture, and other information sufficient to determine compactability and clay content;

(D) The chemical analyses of the stratum immediately above and below the coal seam to be mined, or any other stratum to be affected, to identify at a minimum, those horizons which contain potential acid-forming, toxic-forming, or alkalinity- producing materials.

(v) The near surface geology of those surface operations and facilities not underlain by the coal seam to be extracted shall be described, including the following data resulting from analyses of test borings, core samplings or outcrop samples:

(A) A description of near surface strata beneath the disturbed area;

(B) The lithologic characteristics of the strata to be affected, including physical and chemical properties identifying, at a minimum, texture; and analyses to identify those horizons which contain potential acid-forming, toxic-forming or alkalinity- producing materials.

(b) An applicant may request the Division waive in whole or in part the requirements of 2.04.6(3)(a)(iii) and (iv). The waiver may be granted only if the Division makes a written determination that the collection and analysis of such data is unnecessary because other equivalent information is available to the Division in a satisfactory form.

2.04.7Hydrology Description.

(1) Ground Water Information

(a) The application shall contain a description of the ground water hydrology for the proposed permit and adjacent area, including, at a minimum: 110(2)(l)

(i) The depth below the surface and the horizontal extent of the potentiometric surface of each aquifer above, within and, if potentially impacted, below the lowest coal seam to be mined;

(ii) The lithology and thickness of the aquifers;

(iii) The seasonal quantity and quality of the water within each aquifer;

(iv) Ownership, uses and location information for all existing wells, springs and other developed ground water resources; and

(v) The quality of the subsurface water. Water quality sampling and laboratory analyses will be conducted in accordance with 2.03.3(4) and shall include:

(A) Total dissolved solids or specific conductance corrected to 25° C;

(B) pH;

(C) Total iron; and

(D) Total manganese.

(b) The application shall contain additional information which describes the recharge, storage, and discharge characteristics of aquifers and the quality and quantity of ground water for the proposed permit and adjacent areas, according to the parameters and in the detail required by the Division. The application shall also provide well locations and reported yields from all wells within the proposed permit and adjacent areas which are registered with the Office of the State Engineer.

(2) Surface Water Information

(a) Surface water information shall be provided, including the name of the watershed which will receive water discharges from the permit area, the location of all surface water bodies such as streams, lakes, ponds and springs, the location of any water discharge into any surface body of water, and descriptions of surface drainage systems sufficient to identify, in detail, the seasonal variations in water quantity and quality within the proposed permit and adjacent areas. The application shall also contain information pertaining to ownership and use of surface water bodies. 110(2)(k) 110(2)(l)

(b) Surface water information shall include:

(i) Minimum, maximum, and average flows which identify critical low flow and peak discharge rates of streams sufficient to identify seasonal variations; and

(ii) Water quality data from surface waters in, discharging into, or which will receive flows from surface or ground water from affected areas within the proposed permit area, sufficient to identify seasonal variations. Water quality sampling and laboratory analyses will be conducted in accordance with 2.03.3(4) and shall include:

(A) Total dissolved solids or electrical conductivity corrected to 25 degrees centigrade (specific conductance);

(B) Total suspended solids in milligrams per liter;

(C) Acidity;

(D) pH;

(E) Total and dissolved Iron, in milligrams per liter;

(F) Total Manganese, in milligrams per liter; and

(G) Such other information as the Division, for good cause shown, determines is relevant.

(3) Alternative Water Supply Information. The application shall identify the extent to which the proposed surface coal mining operations may proximately result in contamination, diminution, or interruption of an underground or surface source of water within the proposed permit area and adjacent areas for domestic, agricultural, industrial, fish and wildlife, or other legitimate use. If contamination, diminution, or interruption may result, then the description shall identify the alternative sources of water supply or sources of augmentation water that could be developed to replace the existing sources. The alternate or substituted water shall be of a quality and quantity so as to meet the requirements for which the water has normally been used. (See Article 83 and 92 of Title 37 of the Colorado Revised Statutes.) 110(2)(l)

(4) A map prepared according to the standards of 2.10 showing:

(a) The locations of water supply intakes, ditches, reservoirs, and wells within a one mile minimum radius of the affected area, current users of surface water flowing into, out of, and within a hydrologic area defined by the Division, and those surface waters which will receive discharges from affected areas in the proposed permit area and adjacent area;

(b) Elevations and locations of monitoring stations used to gather data for water quality and quantity.

(c) Location and extent of sub surface water, if encountered, within the proposed permit and adjacent areas, including but not limited to areal and vertical distribution of aquifers, and estimate of seasonal variations of aquifer characteristics on cross sections and contour maps as appropriate.

(d) Location of surface water bodies such as streams, lakes, ponds, springs, constructed or natural drains, and irrigation ditches within the proposed permit and adjacent areas;

(e) Location and dimension of existing areas of spoil, waste, and non coal waste disposal, dams, embankments, other impoundments, and water treatment and air pollution control facilities within the proposed permit area;

(f) Location, and depth, if available, of gas and oil wells within the proposed permit area and water wells in the permit area and adjacent area; and

(g) Elevation and location of test borings and core samplings.

(5) Permit applications may comply with the requirements of 2.04.7(4)(c) and 2.04.7(2)(a) & (b) regarding the seasonal variability of surface and groundwater quality and quantity without the collection of data covering 12 consecutive months if accurate statistical procedures, approved by the Division, are used to extrapolate from a data base covering a shorter period of time. 109(2)

2.04.8Climatological Information.

(1) When requested by the Division the application shall contain a statement of the climatological factors that are representative of the proposed permit area, including: 110(2)(m)

(a) The mean monthly precipitation;

(b) The average direction and velocity of the prevailing winds; and

(c) Mean monthly temperature and temperature ranges.

(2) The Division may for good cause shown request additional climatological data as deemed necessary to ensure compliance with the requirements of 2.04.8.

(3) Permit applications may comply with these requirements regarding seasonal variability of climatological factors without the collection of data covering 12 consecutive months if accurate statistical procedures, approved by the Division, are used to extrapolate from a data base covering a shorter period of time.

2.04.9Soils Resource Information.

(1) The applicant shall provide adequate soils information for those portions of the permit area to be disturbed by surface operations and facilities. Such information shall include at a minimum the following site specific information, or information properly extrapolated from adjacent or similar areas of the same soil type, where the Division determines, in its discretion, such extrapolation is appropriate.

(a) Description, sampling and analysis of soil horizons in sufficient detail to determine the horizons suitable for salvage;

(b) Soils analysis for representative samples of each soil horizon for each soil type with analyses conducted using standardized soil testing procedures. Soil testing parameters shall include:

(i) pH;

(ii) Salt hazard (electrical conductivity);

(iii) Sodium Absorption Ratio or exchangeable sodium percentage;

(iv) Texture;

(v) Other analyses as required by the Division for good cause shown; and

(vi) The Division may waive any of the above parameters based upon a demonstration by the applicant that the parameter is not necessary based on site specific conditions.

(c) A soils map or enlarged aerial photo of the same scale as the permit area map shall be provided which accurately portrays:

(i) Soil sample locations except for those obtained from published reports; and

(ii) The horizons which the operator proposes to salvage within each portion of the permit area.

(d) A narrative or table shall be provided which addresses the suitability of each major soil horizon as a plant growth media based on its physical and chemical characteristics.

(e) A discussion of present and potential productivity of soils.

(2) The intensity of soil sampling and the number of samples to analyze shall be based on the complexity and variability of soils within the permit area.

(3) Where the applicant proposes to use selected overburden materials as a supplement or substitute to topsoil, the application shall provide results of the analyses, trials, and tests required under 4.06.2.

2.04.10Vegetation Information.

(1) The permit application shall contain a vegetation map, prepared in accordance with 2.10, which delineates plant communities within the permit area, or in case of underground mining any area to be affected by surface operations or facilities, and within any proposed reference area(s). The delineation of plant communities shall be on the basis of the visually dominant perennial species. 110(8) 111(1)(b)(II) 111(1)(e) 111(1)(g)

(2) If the applicant intends to use reference area(s) to evaluate the success of revegetation, as described in 4.15.7(4), the proposed locations of these reference area(s) must be included on the vegetation map.

(3) The vegetation map shall include sufficient adjacent areas to allow evaluation of vegetation as important habitat for fish and wildlife for those species of fish and wildlife identified under 2.04.11. An aerial photograph, with the plant communities delineated, may be used in lieu of a vegetation map for this purpose.

(4) Plant communities shall be described in terms of species composition, cover, productivity and woody plant density. The application shall include a discussion of environmental factors controlling or limiting distribution of species, such as elevation, slope, aspect, soils, water availability and past management. Current condition shall be discussed for each community type or portion thereof if significant differences exist within a type.

(5) The potential for impacts to rare and endangered plant species shall be evaluated in accordance with requirements of 2.05.6(2)(a)(iii).

2.04.11Fish and Wildlife Resources Information.

(1) Each application shall include a study of fish and wildlife and their habitats within the proposed permit area and portions of the adjacent area as determined by the Division, or in the case of underground mining, only those areas within the proposed permit area and portions of the adjacent area as determined by the Division where surface mining will be conducted or facilities located and the portions of the permit area where effects on such resources may reasonably be expected to occur. 110(8)

(2) Prior to initiating such studies, the applicant shall contact the Division to determine what fish and wildlife resources information will be required.

(3) The Division, in consultation with the appropriate State and Federal fish and wildlife management, conservation, or land management agencies having responsibilities for fish and wildlife or their habitats, shall determine the level of detail and the areas of such studies, according to:

(a) Published data and other information;

(b) Site specific information obtained by the applicant; and

(c) Written guidance obtained from agencies consulted.

(4) The potential for impacts to rare and endangered animal species shall be evaluated by the Division in consultation with appropriate Federal and State agencies.

2.04.12Prime Farmland Investigation.

(1) For areas where mining was not authorized under permits issued or mining plans approved prior to August 3, 1977, the applicant shall conduct a preapplication investigation of the proposed permit area, or, in the case of underground mining, only those areas proposed to be disturbed by surface operations or facilities, to determine whether lands within the area may be prime farmland. The Division, following consultation with the U.S. Natural Resources Conservation Service, shall determine the nature and extent of the required prime farmland investigation.

(2) Land shall not be considered prime farmland where the applicant can demonstrate one of the following:

(a) The land has not been historically used as cropland;

(b) The slope of the land is 6 percent or greater;

(c) The land is not irrigated or naturally subirrigated, has no developed irrigation water supply that is dependable or of adequate quality;

(d) A very rocky surface exists, or the land is frequently flooded during the growing season, more often than once in 2 years, and the flooding has reduced crop yields;

(e) The growing season is less than 90 days;

(f) On the basis of a soil survey of lands within the permit area, there are no soil map units that have been designated prime farmland by the U.S. Natural Resources Conservation Service; or

(g) Other factors as determined by the State Conservationist of the U.S. Natural Resources Conservation Service to show that the land is not prime farmland.

(3) If the investigation establishes that the lands are not prime farmland, the applicant shall submit with the permit application a request for a negative determination which concludes that the land meets one of the criteria of 2.04.12(2).

(4) The applicant may submit, prior to making an application for a permit, a request for a negative prime farmland determination by the Division and a statement which identifies the rationale for a negative determination.

(5) If the investigation indicates that land within the proposed permit area may be prime farmland historically used for cropland, the applicant shall contact the U.S. Natural Resources Conservation Service to determine if a soil survey exists for those lands and whether the applicable soil map units have been designated prime farmland. If no survey has been made for the lands proposed to be affected by surface operations or facilities, the applicant shall cause such a survey to be made in accordance with Rule 2.06.6(2).

(a) When a soil survey of lands within the proposed permit area, or, in the case of underground mining, only those areas proposed to be disturbed by surface operations or facilities, contains soil map units which have been designated as prime farmlands, the applicant shall submit an application for such designated land in accordance with 2.06.6.

(b) When a soil survey for lands within the proposed permit area, or, in the case of underground mining, only those areas proposed to be disturbed by surface operations or facilities contains soil map units which have not been designated as prime farmland after review by the U.S. Natural Resources Conservation Service, the applicant shall submit a request for negative determination for non designated land with the permit application establishing compliance with 2.04.12(2).

2.04.13Annual Reclamation Report

(1) By February 15, or other such date as agreed on, each permittee shall file an annual reclamation report covering the previous calendar year for all areas under bond. The report shall include, but not be limited to data, discussion and maps which address:

(a) The name and address of the permittee and permit number;

(b) Location and number of acres disturbed during that year;

(c) Location and number of acres backfilled and graded during that year;

(d) Location and number acres top soiled during that year;

(e) The species, location and number of acres of vegetation planted during that year, including any augmented seeding or cultural practices. Discrete areas planted with specific seed mixes should be indicated, and seed tags, invoices or other comparable documentation should be included; and

(f) Location, number of acres and date of planting for all previously revegetated areas.

(2) The permittee may provide additional monitoring information as required by the approved permit.

(3) For underground mines, the operator shall submit a map of the current location and extent of the active and inactive mine workings. Upon request of the operator, information submitted with the map may be held confidential, in accordance with Rule 2.07.5(1)(b).

2.05APPLICATION FOR PERMIT FOR SURFACE OR UNDERGROUND MINING ACTIVITIES-MINIMUM REQUIREMENTS FOR OPERATION AND RECLAMATION PLANS

2.05.1Objectives.

The objectives of 2.05 are to ensure that the Division is provided with comprehensive and reliable information on proposed surface coal mining and reclamation operations, and to ensure that those operations are allowed to be conducted only in compliance with these Rules and the Act. Information presented in the application which addresses 2.05 shall be referenced to the applicable environmental baseline information of 2.04 to demonstrate that a proposed operation is being conducted consistent with environmental resources information. 110(3) 111(1)(e)

2.05.2Operation Plan- Estimated Area for Life of Operation.

Each application shall contain a general description of all surface coal mining operations proposed to be conducted during the life of the operation. This general description shall include, at a minimum, the following: 111(1)(a)

(1) Production methods and equipment. A narrative description of the general type and method of coal mining procedures, engineering techniques, anticipated annual and total production of coal, by tonnage, and the major equipment to be used for all aspects of those operations and a description of the measures to be used to maximize the use and conservation of the coal resource as required in 4.01.1. 111(1)(e)

(2) Operation description. A general description and appropriate map(s), prepared in accordance with 2.10, describing the area of land to be affected over the life of the operation, according to the anticipated sequence of mining and reclamation, and identifying each area of land for which it is anticipated a new, separate, five-year permit will be obtained and a performance bond will be posted throughout the operation and any change in a facility or feature shown under 2.10 which would result from the proposed operations. 111(1)(a)

2.05.3Operation Plan - Permit Area.

Each application shall contain a detailed description of the specific mining operations proposed to be conducted within the permit area. This description shall include, at a minimum, the following:

(1) Production methods and equipment. A narrative description of the specific type and method of coal mining procedures and proposed engineering techniques, anticipated annual and total production of coal by tonnage, and the major equipment to be used for all aspects of those operations.

(2) Operation description.

(a) Surface mining. A detailed narrative description and appropriate map(s) prepared in accordance with 2.10, describing the land to be affected within the permit area according to the proposed sequence of mining and reclamation. Each narrative and/or map shall include a detailed timetable sufficient to describe the various mining phases proposed by the applicant. The maximum acreage proposed for each phase of the operations within the permit area must be specified.

(b) Underground Mining. A detailed narrative and appropriate map(s), prepared according to the standards of 2.10, sufficient to describe all proposed surface disturbances to be associated with the underground mining activities within the permit area. Each operation plan shall include a narrative, cross sections, map(s) and timetable(s) sufficient to describe the areal extent of the proposed underground workings and the stratum to be affected.

(3) Mine facilities.

(a) A description, plans, and drawings, describing the location, construction, modification, use, maintenance and removal of mine support facilities in the permit area including all buildings, structures, utility corridors and other support facilities including but not limited to those listed in 4.04. Plans and drawings shall include a map, to meet the standards prescribed in 2.10, appropriate cross sections, design drawings, and specifications sufficient to demonstrate compliance with 4.04.

(b) A description of each existing structure, for which there are specific design criteria or performance standards specified in these Rules, proposed to be used in connection with or to facilitate the surface coal mining and reclamation operations. The description shall include:

(i)

(A) Location;

(B) Plans of the structure which describe its current condition;

(C) Approximate dates on which construction of the existing structure was begun and completed; and

(D) A showing, including relevant monitoring data or other evidence, whether the structure meets the design requirements or performance standards of Rule 4 or is eligible for exemption as set forth in 2.07.6.

(ii) A compliance plan for each existing structure that is proposed to be modified or reconstructed for use in connection with or to facilitate the surface coal mining and reclamation operation. The compliance plan shall include:

(A) Design specifications for the modification or reconstruction of the structure to meet the requirements of these Rules;

(B) A construction schedule which shows dates for beginning and completing interim steps and final reconstruction;

(C) Provisions for monitoring the structure during and after modification or reconstruction to ensure that the performance standards of these Rules are met; and

(D) A showing that the risk of harm to the environment or to public health or safety is not significant during the period of modification or reconstruction.

(c) A description of each road, conveyor, or rail system to be constructed, used, or maintained within the proposed permit area. The description shall include a map, prepared in accordance with 2.10, appropriate cross sections, and the following:

(i) Specifications for each road width, road gradient, road surface, road cut, fill embankment, culvert, bridge, drainage ditch, and drainage structure.

(ii) A report of appropriate geotechnical analysis, where approval of the Division is required for alternative specifications, or for steep cut slopes under 4.03.1(3)(d) or 4.03.2(3)(d).

(iii) A description of measures to be taken by the applicant for alteration or relocation of a natural drainage way under 4.03.1(4)(a)(i), 4.03.2(4)(a)(i), or 4.03.3(4)(d).

(iv) A description of measures, other than use of a rock headwall, to be taken to protect the inlet end of a ditch relief culvert, for approval by the Division under 4.03.1(4)(e)(vi)(C).

(v) A description of measures to be used to ensure that the interests of the public and landowners affected are protected if, under 2.07.6(2)(d)(iv), the applicant seeks to have the Division approve:

(A) Conducting the proposed surface mining activities within 100 feet of the right-of-way line of any public road, except where mine access or haul roads join that right-of-way; or

(B) Relocating the public road.

(vi) Drawings and specifications for any stream fords proposed for use as temporary construction routes.

(vii) The plans and drawings for each haul road and access road shall be prepared by, or under the direction of, and certified by a qualified, registered professional engineer, experienced in the design and construction of roads, as meeting the requirements of this rule; current, prudent engineering practices; and the design criteria of 4.03.1 and 4.03.2.

(4) Ponds, impoundments, other treatment facilities and diversions.

(a) General. A general plan and detailed design plan shall be submitted for each sediment pond, impoundment, other treatment facility and diversion proposed to be constructed within the permit area.

(i) Each general plan shall:

(A) Be prepared by, or under the direction of, and certified by a qualified registered professional engineer with assistance as appropriate from other engineers and experts in related fields such as geology, land surveying and landscape architecture.

(B) Contain a description, map, prepared according to 2.10, and cross section of the structure and its location;

(C) Contain preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;

(D) Contain an analysis describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining activities if underground mining has occurred; and

(E) Contain a certification statement which includes a schedule setting forth the dates that any detailed design plan for structures that are not submitted with the general plan will be submitted to the Division. The Division shall have approved, in writing, the detailed design plan for a structure before construction of the structure begins.

(ii) Each detailed design plan for a structure shall:

(A) Be prepared by, or under the direction of, and certified by a qualified registered professional engineer experienced in the design and construction of impoundments with assistance as appropriate from other engineers and experts in related fields such as geology, land surveying and landscape architecture.

(B) Include any geotechnical investigation, design, and construction specifications required by the Division to ensure compliance with the safety factor requirements of Rule 4.05.6 and Rule 4.05.9 ;

(C) Describe the operation and maintenance requirements for each structure; and

(D) Describe the timetable and plans to remove each structure, if appropriate.

(iii) If an impoundment has a capacity of more than 100 acre- feet, or has a dam or embankment in excess of 10 feet in vertical height, from the bottom of the channel to the bottom of the spillway, or has a surface area at high waterline in excess of 20 acres, then each plan under 2.05.3(4)(b) or (c) shall meet the applicable requirements of the State Engineer in accordance with C.R.S. 37 87 105. C.R.S. 37-87-105 is hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(iv) In cases where a sedimentation pond or impoundment meets or exceeds the criteria of 30 CFR 77.216(a), then the permittee shall also comply with the applicable requirements of the Mine Safety and Health Administration (MSHA), 30 CFR 77.216-1 and -2. 30 CFR 77.216(a), 30 CFR 77.216-1 and 30 CFR 77.216-2 are hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(v) Any plans required to be submitted to, and approved by, the Office of the State Engineer or MSHA for impoundments shall also be submitted to the Division as part of the permit application.

(vi) All impoundments meeting the Class B or Class C criteria for dams in the U.S. Department of Agriculture, Natural Resources Conservation Service Technical Release No. 60 (210-VI-TR60, October 1985), "Earth Dams and Reservoirs" (TR60), shall comply with the requirements of this section for structures that meet or exceed the size or other criteria of 30 CFR 77.216(a). TR60 and 30 CFR 77.216(a) are hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(vii) Each plan for an impoundment which meets the Class B or Class C criteria in U.S. Department of Agriculture, Natural Resources Conservation Service Technical Release No. 60 (210-VI-TR60, October 1985), "Earth Dams and Reservoirs" (TR60) or meets the size or other criteria of 30 CFR 77.216(a) shall include a stability analysis of the structure. The stability analysis shall include, but shall not be limited to, strength parameters, pore pressure, and long term seepage conditions. The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods. TR60 and 30 CFR 77.216(a) are hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(b) Sedimentation Ponds, whether temporary or permanent, shall be designed in conformance with the requirements of Rule 4.05.6, and the applicable requirements of Rule 4.05.9 . Any sedimentation pond or earthen structure which will remain on the proposed permit area as a permanent impoundment shall also be designed to comply with the requirements of Rule 4.05.9.

(c) Permanent and temporary impoundments. Permanent and temporary impoundments shall be designed to comply with the requirements of 4.05.9.

(d) Diversions. Stream channel diversions and other diversions within the proposed permit area shall be designed to comply with requirements of 4.05.3 and 4.05.4.

(5) Topsoil. A narrative explaining the method of removal and the amount to be removed and the plan for storage of topsoil, subsoil, and other material within the permit area subject to requirements of the topsoil removal performance standards of 4.06.2. This narrative shall specify the depth of material to be salvaged from all disturbed areas based on the soil information required by 2.04.9 and shall specify the volume of each type of material to be salvaged. A map of any proposed storage structures shall accompany the narrative. The maps shall be prepared according to the requirements of 2.10. 111(1)(e) 111(3)

(6) Overburden. A narrative and appropriate maps explaining the removal, handling and storage of all overburden material in the permit area. Each narrative should include pit dimensions, overburden volumes and swell factor anticipated for each phase of the proposed operation. Permanent excess spoil disposal structures shall comply with 2.05.3(6)(b). Temporary overburden disposal (storage) structures shall comply with the applicable performance standards of Rule 4; information to demonstrate such compliance shall include, if applicable, location, geometry, and method of material placement. If appropriate for the proposed operation, each plan should also include: 111(1)(e)

(a) A surface blasting plan for the proposed permit area, explaining how the applicant intends to comply with the requirements of 4.08 and including the following: 110(6)

(i) Types and approximate amounts of explosives to be used for each type of blasting operation to be conducted;

(ii) A plan for recording and retention of the following during blasting:

(A) Drilling patterns, including size, number, depths, and spacing of holes;

(B) Charge and packing of holes;

(C) Types of fuses and detonation controls; and

(D) Sequence and timing of firing holes.

(iii) Description of blasting warning and site access control equipment and procedures;

(iv) Description of types, capabilities, sensitivities, and locations of use of any blast monitoring equipment and procedures proposed to be used;

(v) Description of plans for recording and reporting to the Division the results of pre blasting surveys, if required;

(vi) Description of unavoidable hazardous conditions for which deviations from the blasting schedule will be needed under 4.08.4(2);

(vii) The limitations the operator will meet with regard to ground vibration and airblast, the bases for those limitations, and the methods to be applied in controlling the adverse effects of blasting operations; and

(viii) On a map locate each explosive storage and handling facility.

(b) Descriptions, including appropriate maps, prepared according to the standards of 2.10, and cross section drawings, of the proposed disposal site and design of the spoil disposal structures according to 4.09. These plans shall describe the geotechnical investigation, design, construction, operation, maintenance, and removal, if appropriate, of the site and structures and shall be prepared by a qualified registered professional engineer. 111(1)(e)

(c) The results of a geotechnical investigation of the proposed disposal site, including the following: 111(1)(e)

(i) The character of bedrock and any adverse geologic conditions in the disposal area;

(ii) A survey identifying all springs, seepage and ground water flow observed or anticipated during wet periods in the area of the disposal site;

(iii) A survey of the potential effects of subsidence of the subsurface strata due to past and future mining operations;

(iv) A technical description of the rock materials to be utilized in the construction of those disposal structures containing rock chimney cores or underlain by a rock drainage blanket; and

(v) A stability analysis including, but not limited to, strength parameters, pore pressures and long-term seepage conditions. These data shall be accompanied by a description of all engineering design assumptions and calculations and the alternatives considered in selecting the specific design specifications and methods.

(d) If, under 4.09.1(10), rock toe buttresses or key- way cuts are required, the applications shall include the following:

(i) The number, location and depth of borings or test pits which shall be determined with respect to the size of the spoil disposal structure and subsurface conditions; and

(ii) Engineering specifications utilized to design the rock-toe buttresses or key- way cuts which shall be determined in accordance with 2.05.3(6)(c)(v).

(7) Coal Handling Structures.

A narrative and appropriate map, prepared to meet the standards of 2.10, generally explaining the location, construction, modification, use, maintenance and removal of coal removal, handling, storage, cleaning, and transportation areas and structures in accordance with 4.01.1. 111(1)(e),(f)

(8) Coal Mine Waste And Non-Coal Waste.

A narrative explaining the construction, modification, use, maintenance, removal, and reclamation of coal mine waste and non-coal waste removal, handling, storage, transportation and disposal areas and structures in the permit area in accordance with Rules 4.10 and 4.11 including appropriate maps, which meet the requirements of Rule 2.10, explaining the location of each source of waste, waste storage area, and waste disposal facility.

(a) Each application shall contain a general plan and detailed design plan for each coal mine waste and non-coal waste bank, dam, or embankment proposed to be constructed within the permit area.

(i) Each general plan shall:

(A) Be prepared by, or under the direction of and certified by a qualified registered professional engineer, or by a professional geologist with assistance from experts in related fields such as surveying and landscape architecture;

(B) Contain a description, map, prepared according to 2.10, and cross section of the structure and its location;

(C) Contain preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;

(D) Contain a survey describing the potential effect on the structure from subsidence of the subsurface strata resulting from past underground mining activities if underground mining has occurred; and

(E) Contain a certification statement which includes a schedule setting forth the dates that any detailed design plan for structures that are not submitted with the general plan will be submitted to the Division. The Division shall have approved, in writing, the detailed design plan for a structure before construction of the structure begins.

(ii) Each detailed design plan for a structure shall:

(A) Be prepared by, or under the direction of, and certified by a qualified registered professional engineer with assistance from experts in related fields such as geology, land surveying, and landscape architecture;

(B) Describe the operation and maintenance requirements for each structure;

(C) Describe the timetable and plans to remove each structure, if appropriate; and

(D) Include any geotechnical investigations, design, and construction requirements for the structure.

(iii) If an impoundment has a capacity of more than 100 acre- feet, or has a dam or embankment in excess of 10 feet in vertical height, from the bottom of the channel to the bottom of the spillway, or has a surface area at high waterline in excess of 20 acres, then each plan under 2.05.8(b) or (c) shall meet the applicable requirements of the State Engineer in accordance with C.R.S. 37 87 105. C.R.S. 37-87-105 is hereby incorporated by reference, can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(iv) In cases where a structure meets or exceeds the criteria of 30 CFR 77.216(a) then the permittee shall comply with the applicable requirements of the Mine Safety and Health Administration, 30 CFR 77.216-1 and -2. 30 CFR 77.216(a), 30 CFR 77.216-1 and 30 CFR 77.216-2 are hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(v) All impoundments meeting the Class B or Class C criteria for dams in the U.S. Department of Agriculture, Natural Resources Conservation Service Technical Release No. 60 (210-VI-TR60, October 1985), "Earth Dams and Reservoirs" (TR60), shall comply with the requirements of this section for structures that meet or exceed the size or other criteria of the 30 CFR 77.216(a). TR60 and 30 CFR 77.216(a) are hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(vi) Each plan for an impoundment which meets the Class B or Class C criteria in U.S. Department of Agriculture, Natural Resources Conservation Service Technical Release No. 60 (210-VI-TR60, October 1985), "Earth Dams and Reservoirs" (TR60) or meets the size or other criteria of 30 CFR 77.216(a) shall include a stability analysis of the structure. The stability analysis shall include, but shall not be limited to, strength parameters, pore pressure, and long term seepage conditions. The plan shall also contain a description of each engineering design assumption and calculation with a discussion of each alternative considered in selecting the specific design parameters and construction methods. TR60 and 30 CFR 77.216(a) are hereby incorporated by reference, and can be viewed and copies can be obtained at the Division as set forth in Rule 1.01(9).

(b) Coal processing waste banks. Coal processing waste banks shall be designed to comply with the requirements of 4.10.

(c) Coal processing waste dams and embankments. Coal processing waste dams and embankments shall be designed to comply with the requirements of 4.11.5, and shall contain the results of geotechnical investigation of the proposed dam or embankment foundation area, to determine the structural competence of the foundation which will support the proposed dam or embankment structure and impoundment material. The geotechnical investigation shall be planned and supervised by an engineer or engineering geologist, according to the following:

(i) The number, location, and depth of borings and test pits shall be determined using current prudent engineering practice for the size of dam or embankment, quantity of material to be impounded, and subsurface conditions.

(ii) The character of the overburden and bedrock, the proposed abutment sites, and any adverse geotechnical conditions which may affect the particular dam, embankment, or reservoir site shall be considered.

(iii) All springs, seepage, and ground water flow observed or anticipated during wet periods in the area of the proposed dam or embankment shall be identified on each plan.

(iv) An analysis shall be made of the engineering safety and environmental protection factors to allow for the possibility of mudflows, rock-debris falls, or other landslides into the dam, embankment, or impounded material.

(9) Return of coal mine waste to abandoned workings.

(a) Each plan shall describe the design, operation and maintenance of any proposed coal mine waste disposal facility, including flow diagrams and any other necessary drawings and maps, which must meet the standards of 2.10, for the approval of both the Division and the Mine Safety and Health Administration, in accordance with 4.11.3.

(b) Each plan shall describe the source and quality of waste to be stored, area to be backfilled, percent of the mine void to be filled, method of constructing underground retaining walls, influence of the backfilling operation on active underground mine operations, surface area to be supported by the backfill, and the anticipated occurrence of surface effects following backfilling.

(c) The applicant shall describe the source of hydraulic transport medium, method of dewatering the placed backfill, retainment of water underground, treatment of water if released to surface streams, and the effect on the hydrologic regime.

(d) The plan shall describe each permanent monitoring well to be located in the backfilled area, the stratum underlying the mined coal, and gradient from the backfilled area.

(e) The requirements of 2.05.3 shall also apply to pneumatic backfilling operations, except where the operations are exempted by the Division from requirements specifying hydrologic monitoring.

2.05.4Reclamation Plan

(1) Each application shall contain a plan for reclamation of the lands within the proposed permit area, showing how the applicant will comply with environmental protection performance standards of the regulatory program. The plan shall include, at a minimum, all information required under the relevant sections of Rule 2. 110(3), 111

(2) Each plan shall contain the following information for the proposed permit area, including any roads which are to be removed, or modified for retention as part of the post-mining land use:

(a) A detailed timetable for the completion of each major step in the reclamation plan;

(b) A detailed estimate of the cost of reclamation of the proposed operations required to be covered by a performance bond with supporting calculations for the estimates;

(c) A plan for backfilling, soil stabilizing, compacting, and grading with post mining contour maps and appropriate cross sections that are typical and representative of the anticipated character of the final surface configuration of the proposed permit area, in accordance with 4.14, for closure of underground openings in accordance with 4.05.10 and 4.07.3, for stream channel reconstruction in accordance with 4.05.4, and for road removal or modification in accordance with 4.03.

(d) A plan for removal, storage and redistribution of topsoil, subsoil, and other material to meet the requirements of 4.06.

(e) A plan for revegetation to meet the requirements of 4.15, including, but not limited to, description of the:

(i) Schedule of revegetation;

(ii) Species and amounts per acre of seeds and seedlings to be used;

(iii) Methods to be used in planting and seeding;

(iv) Mulching techniques;

(v) Irrigation, if appropriate and pest and disease control measures, if any;

(vi) Measures proposed to be used to determine the success of revegetation in accordance with 4.15.7; and

(vii) Soil testing plan for evaluation of the results of topsoil handling and reclamation procedures related to revegetation and topsoil standards of 4.06.

(f) A description of measures to be employed to ensure that all debris, acid-forming and toxic-forming materials constituting a fire hazard are disposed of in accordance with 4.11.4 and 4.14.3 and a description of the contingency plans which have been developed to preclude sustained combustion of such materials;

(g) A description, including appropriate cross sections and maps, prepared in accordance with 2.10, of the measures to be used to seal or manage mine openings, and to plug, case, or manage exploration holes, other bore holes, wells, and other openings within the proposed permit area, in accordance with 4.07; and

(h) A description of steps to be taken to comply with the requirements of the Clean Air Act (42 U.S.C. Sec. 7401et seq.), the Clean Water Act (33 U.S.C. Sec. 1251et seq.), and other applicable air and water quality laws and regulations and health and safety standards, or a copy of an approved permit or application for a permit.

2.05.5Post mining Land Uses.

(1) Surface coal mining activities.

(a) Each plan shall contain a detailed narrative of the proposed use, following reclamation of the land within the proposed permit area. In accordance with land use categories established in the narrative, the plan shall include a discussion of the utility and capacity of the reclaimed land to support a variety of alternative uses, and the relationship of the proposed use to existing land use policies and plans. This description shall explain: 111(1)(b),(c),(d),(h)

(i) How the proposed post mining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use;

(ii) Where a land use different from the pre mining land use is proposed, all materials needed for approval of the alternative use under 4.16;

(iii) The consideration which has been given to making all of the proposed surface coal mining and reclamation operations consistent with surface owner plans and programs; and

(b) The description shall be accompanied by a copy of the comments concerning the proposed use by the legal or equitable owner of record of the surface of the proposed permit area and the State and local government agencies which would have to initiate, implement, approve, or authorize the proposed use of the land following reclamation.

(c) A map prepared to the standards of 2.10 shall accompany the plan.

(2) Underground mining activities.

(a) Each plan shall contain a detailed narrative of the proposed use following reclamation of the land to be affected by all surface operations and facilities within the permit area. In accordance with the land use categories established in the narrative, the plan shall include a discussion of the utility and capacity of the reclaimed land to support a variety of uses and the relationship of the proposed use to existing land use policies and plans. The description shall explain:

(i) How the proposed post mining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use;

(ii) Where a land use different from the pre mining land use is proposed, all materials needed for approval of the alternative use under 4.16; and

(iii) The consideration which has been given to making all of the proposed surface mining activities consistent with surface owner plans and applicable State and local land use plans and programs.

(b) The description shall be accompanied by a copy of the comments concerning the proposed use by the legal or equitable owner of record of the surface of the proposed permit area and the State and local government agencies which would have to initiate, implement, approve, or authorize the use of the land following reclamation.

(c) A map prepared to the standards of 2.10 shall accompany the plan.

(d) For those disturbed areas within the permit area where long term structures or facilities exist or are to be constructed, the applicant may propose specific alternative land uses which may be approved towards the end of the life of the mine through the permit revision procedures required by 2.08. In such cases, the application shall contain a clear demonstration along with supporting information that the pre mining land use capability will be achieved.

2.05.6Mitigation of the Impacts of Mining Operations.

(1) Air Pollution Control Plan. 111(1)(i)

(a) All permit applications for existing operations shall contain a copy of an initially approved or finally approved emission permit if applicable from the Colorado Air Quality Control Commission, Air Pollution Control Division or the Air Quality Hearing Board. All permit applications for new operations shall contain a copy of the application for such emission permit and shall be updated accordingly as initial or final decisions are rendered. 111(1)(i)

(b) All permit applications shall contain a description of the steps to be taken, including copies of permits or permit applications, if any, to comply with other applicable State or Federal air quality laws or regulations.

(2) Fish and Wildlife Plan. 111(1)(c) 111(1)(m)(I)

(a) Each application shall contain a fish and wildlife plan, consistent with 4.18 which provides: 111(1)(h), 102

(i) A statement of how the plan will minimize disturbances and adverse impacts on fish and wildlife and related environmental values during surface coal mining and reclamation operations, and how enhancement of these resources will be achieved, where practicable. The plan shall cover the permit area and portions of adjacent areas as determined by the Division pursuant to 2.04.11.

(ii) If the applicant states that it will not be practicable, in accordance with 2.05.6(2)(a)(i), to achieve a condition which clearly shows a trend toward enhancement of fish and wildlife resources at the time revegetation has been successfully completed under 4.15, a statement shall be provided which establishes, to the satisfaction of the Division, why it is not practicable to achieve such a condition; and

(iii) A statement explaining how the applicant will utilize impact control measures, management techniques, and monitoring methods to protect or enhance the following, if they are to be affected by the proposed activities:

(A) Threatened or endangered species of plants or animals listed by the Secretary under the Endangered Species Act of 1973, as amended (16 U.S.C. Sec. 1531et seq.) or threatened or endangered species of wildlife designated by the state under the Nongame, Endangered and Threatened Species Conservation Act (Section 33-2-101et seq., C.R.S.) and their habitats;

(B) Species such as eagles, migratory birds or other animals protected by State or Federal law, and their habitats; or other species identified through the consultation process pursuant to 4.18; or

(C) Habitats of unusually high value for fish and wildlife, such as wetlands, riparian areas, cliffs supporting raptors, areas offering special shelter or protection, reproduction and nursery areas, and wintering areas.

(b) For surface coal mining activities the plan shall include a map, prepared to the standards of 2.10 which shall show the location of each facility to be used to protect and enhance fish and wildlife and related environmental values.

(c) Upon request, the Division shall provide the resource information required by Rule 2.04.10 and the fish and wildlife plan required in (a) and (b) of this section to the U.S. Fish and Wildlife Service regional or field office for their review. This request shall be provided within 10 days of receipt of the request from the U.S. Fish and Wildlife Service.

(3) Protection of hydrological balance. 111(1)(m)

(a) Each application shall contain a detailed description with appropriate maps, which are prepared to the standards of 2.10, and cross section drawings, of the measures to be taken during and after the proposed surface or underground mining activities, in accordance with Rule 4 to ensure the protection of:

(i) The quality of surface and ground water, within both the proposed permit area and adjacent areas, from adverse effects of the proposed surface or underground mining activities;

(ii) The rights of present users to surface and ground water, which may be adversely affected by the surface coal mining and reclamation operations;

(iii) The quantity of surface and ground water both within the proposed permit and adjacent area from adverse effects of the proposed mining activities, or where the protection of quantity cannot be ensured to provide alternative sources of water in accordance with 2.04.7(3) and 4.05.15; and

(iv) The quality of surface and ground water affected by any underground mines by locating mine openings in accordance with 4.05.10.

(b) The description shall include:

(i) A plan for control, in accordance with Rule 4, of surface and ground water drainage into, through and out of the proposed permit area and adjacent area;

(ii) A plan for treatment, where required by these Rules, and for surface and ground water drainage from the area to be affected by the activities, and proposed quantitative limits on pollutants in discharges subject to applicable State and Federal laws.

(iii) A determination of the probable hydrologic consequences of the proposed surface coal mining activities, or underground mining activities, on the proposed permit area and adjacent area, with respect to hydrologic regime and the quantity and quality of water in surface and ground water systems under all seasonal conditions, as determined by baseline hydrologic and geologic data collected from, or statistically representative of, the site. The probable hydrologic consequences will identify adverse impacts which may occur to the hydrologic balance including: impacts from acid- or toxic-forming materials; whether the operation would interrupt, diminish, or contaminate water sources; the effect the operation would have on sediment yields, flooding or streamflow, and surface and ground water availability; and the effect the operation would have on concentrations of total dissolved and total suspended solids, total iron, pH, total manganese, and other parameters required by the Division.

(iv) A plan based on the probable hydrologic consequences determination and baseline hydrologic and geologic information submitted to comply with 2.04.5, 2.04.6, and 2.04.7 for the collection, recording, and reporting of ground and surface water quality and quantity data. The plan, in accordance with 4.05.13, shall identify monitoring site locations, points of compliance, parameters, sampling frequency, and describe how these data will be used to determine the impact on the hydrologic balance. At a minimum, the hydrologic monitoring plan shall include: 110(2)(l)

(A) Monitoring of at least total dissolved solids or electrical conductivity corrected to 25 centigrade (specific conductance), pH, manganese and iron;

(B) Monitoring of water levels, reported as feet above or below land surface datum, for ground water plans;

(C) Monitoring of total suspended solids and flow rate measurements for surface water plans; and

(D) Monitoring for additional water quality constituents may be required by the Division based upon site-specific conditions, approved post mining land use, or for good cause shown.

(v) A hydrologic reclamation plan specifically addressing any potential adverse hydrologic consequences identified in the probable hydrologic consequences determination prepared based upon 2.05.6(3)(b)(iv) and shall include preventive and remedial measures as necessary to prevent material damage, to minimize hydrologic impacts, and to meet the performance standards of 4.05.

(vi) The location of each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used within the permit area.

(vii) A plan for the restoration of the approximate recharge capacity of the permit area and adjacent area in accordance with 4.05.12(3).

(viii) If the determination of the probable hydrologic consequences (PHC) required by 2.05.6(3)(b)(iv) indicates that adverse impacts on or off the proposed permit area may occur to the hydrological balance, or that acid-forming or toxic-forming material is present and may result in the contamination of ground water or surface water supplies, then information supplemental to that required under 2.05.6(3)(b) shall be provided, as necessary, to evaluate such PHC and to plan remedial and reclamation activities. Such supplemental information may be based upon drilling, aquifer testing, hydrogeologic analysis of the water bearing strata, flood flows, or analysis of other water quality or quantity characteristics.

(c) For underground mining activities, the application shall contain a detailed description, with appropriate drawings, of permanent entry seals and down- slope barriers designed to ensure stability under anticipated hydraulic heads developed while promoting mine inundation after mine closure for the proposed permit area and adjacent area.

(4) Protection of public parks and historic places.

(a) For any publicly owned park or any place listed on the National Register of Historic Places that may be adversely affected by the proposed operation, each application shall describe the measures to be used to minimize or prevent these impacts and to obtain approval of the Division and the other agencies as required in Rule 2.07.6(2)(d)(iv).

(b) The Division may require the applicant to protect historic or archeological sites listed on or those places eligible for listing, as determined by the SHPO, on the National Register of Historic Places through the appropriate mitigation and treatment measures. Such measures may be taken after permit issuance provided the required measures are completed before the sites are affected by any mining operations.

(5) Surface Mining Near Underground Mining. For surface mining activities within the proposed permit area to be conducted within 500 feet of an underground mine, the application shall describe the measures to be used to comply with 4.19. 111(1)(i) 120(2)(a)

(6) Subsidence Survey, Subsidence Monitoring, and Subsidence Control Plan.

(a) For underground mining activities the application shall include an inventory of all structures, renewable resource lands and drinking, domestic, or residential water supplies which exist within the proposed permit and adjacent area.

(i) If no such structures, renewable resource lands, or drinking, domestic or residential water supplies exist, no further information need be provided in the application under this Rule.

(ii) If such structures, renewable resource lands, or drinking, domestic or residential water supplies exist, the application shall include:

(A) A brief description of all structures, renewable resource lands, and drinking, domestic or residential water supplies which exist within the proposed permit and adjacent area, describing specifically the pre-subsidence condition of any occupied residential dwelling and any structure related thereto and any noncommercial building. If the applicant cannot make this survey because the owner will not allow access to the site, the applicant will notify the owner, in writing, of the effect that denial of access will have in establishing the pre-subsidence condition to determine whether any subsequent damage to protected structures was caused by subsidence from underground mining under Rule 4.20.3(2); and

(B) An appropriate map, prepared according to Rule 2.10, with the exception that the map shall be at a scale of 1:12,000 or larger if determined necessary by the Division, showing the location and configuration of structures, renewable resource lands, and drinking, domestic or residential water supplies within the permit and adjacent area, identifying specifically any occupied residential dwelling, any structure related thereto, any noncommercial building, and any drinking, domestic or residential water supply.

(iii) Any technical assessments, engineering evaluations, or pre-subsidence inventories or surveys used to determine the pre-subsidence condition of any occupied residential dwelling, any structure related thereto, or any noncommercial building, or used to determine the pre-subsidence quality or quantity of any drinking, domestic or residential water supply, shall be paid for, performed, or otherwise obtained by the applicant.

(iv) Copies of any pre-subsidence inventories and surveys, technical assessments, and engineering evaluations, related to occupied residential dwellings and structures related thereto, noncommercial buildings, or drinking, domestic or residential water supplies shall be submitted to the Division and provided by the applicant to property owners at their request.

(b) If structures, renewable resource lands, or drinking, domestic or residential water supplies are determined to exist within the proposed permit and adjacent area, the application shall include a description of the worst possible consequences that subsidence, if it occurred, could create for such structures, renewable resource lands, or drinking, domestic or residential water supplies.

(i) This description of worst possible consequences shall include:

(A) A brief description of pre- and post mining land uses of the permit and adjacent area, as described pursuant to Rules 2.04.3 and 2.05.5;

(B) A brief description of subsidence related phenomena predicted to occur within the permit and adjacent area; and

(C) A brief description of material subsidence damage, diminution of reasonably foreseeable use of structures and renewable resource lands or contamination, diminution or interruption of drinking, domestic or residential water supplies which could result from the occurrence of the subsidence related phenomena described in accordance with Rule 2.05.6, including consideration of the definitions and considerations contained in Rules 2.05.6(6)(e)(ii)(A),(B), and (C).

(ii) If the description of worst possible subsidence consequences, prepared in accordance with Rule 2.05.6, determines that no material subsidence damage, diminution of reasonably foreseeable use of structures or renewable resource lands, or contamination, diminution or interruption of drinking, domestic or residential water supply could result in the event of mine subsidence within the permit and adjacent areas, and if the Division concurs with that conclusion, the application shall include a monitoring program designed to determine the accuracy of that conclusion, as described in Rule 2.05.6(6)(c).

(iii) If the description of worst possible subsidence consequences, prepared in accordance with Rule 2.05.6, determines that material subsidence damage, diminution of reasonably foreseeable use of structures or renewable resource lands, or contamination, diminution or interruption of a drinking, domestic or residential water supply could result in the event of mine subsidence within the permit and adjacent areas, the application shall include additional information as required by either one of the following:

(A) A subsidence survey, as described in Rule 2.05.6(6)(e); or

(B) A subsidence control plan, as described in Rule 2.05.6(6)(f).

(c) Subsidence Monitoring Program.

(i) The monitoring program shall be designed to determine the commencement and magnitude of subsidence movements which occur and shall include the following monitoring techniques:

(A) Monuments shall be installed and surveyed prior to the commencement of mining.

(B) Monuments shall be situated to appropriately monitor ground surface movement, vertical and horizontal, within the area proposed to be undermined, including an area to accommodate the predicted angle- of-draw.

(C) The orientation, location and elevation of each structure within the permit and adjacent area shall be monitored.

(D) Monitoring of established monuments and structures shall be performed at least quarterly, commencing one month prior to the initiation of mining beneath any established monument or structure.

(E) Monitoring of drinking, domestic and residential water supplies shall be conducted in accordance with the plan for the collection, recording, and reporting of ground and surface water quality data described in Rules 2.05.6 and 4.05.13, and results of monitoring of drinking, domestic and residential water supplies shall also be submitted with the subsidence monitoring program report.

(F) Results of the monitoring program shall be submitted to the Division at least semi-annually.

(G) The monitoring program shall be designed to extend for a time, beyond cessation of mining in any area, consistent with the need for verification of the subsidence prediction.

(ii) The application shall include an appropriate map, prepared according to the standards of Rule 2.10, with the exception that the map shall be at a scale of 1:12,000 or larger if determined necessary by the Division, showing the location of monuments to be installed and monitored, the location of any structure to be monitored, and the location of any drinking, domestic or residential water supply to be monitored within the permit and adjacent area.

(d)

(i) If a subsidence monitoring program determines, in the opinion of the Division, that the subsidence prediction was inaccurate and that material subsidence damage, diminution of reasonably foreseeable use of structures or renewable resource lands or contamination, diminution or interruption of a drinking, domestic or residential water supply may occur, the permittee will be required to submit a subsidence control plan, as defined in Rule 2.05.6(6)(f).

(ii) In order to protect structures, renewable resource lands, and drinking, domestic or residential water supplies within the permit and adjacent area, the Division, after consultation with the permittee, shall suspend underground coal mining near structures or renewable resource lands, if imminent danger of material subsidence damage or diminution of reasonably foreseeable use is determined to exist.

(e) A subsidence survey, prepared by appropriately qualified professionals in accord with the current state-of-the-art of subsidence prediction technology, shall contain the following information:

(i) A detailed description of subsidence predicted to occur within the permit and adjacent area, including:

(A) A brief description of the planned mining methods;

(B) A brief description of geologic properties which influence subsidence occurrence, such as rock mechanics character of the affected materials, geologic structure of the affected materials, faulting and fracturing of the involved geologic section, and permit and adjacent area topography;

(C) A brief description of local mining experience concerning subsidence occurrence, if any;

(D) A detailed description of subsidence related phenomena predicted to occur within the permit and adjacent area;

(E) The angle-of-draw predicted to be characteristic of the permit and adjacent area; and

(F) Appropriate maps, prepared according to the standards of Rule 2.10, with the exception that the map shall be at a scale of 1:12,000 or larger if determined necessary by the Division, showing:

(I) Any existing subsidence features which exist within the permit and adjacent area;

(II) The extent of the proposed mine workings;

(III) The ground surface areal extent of an area determined by the projection of the angle-of-draw, if predicted pursuant to Rule 2.05.6 or 45°, if no prediction is made by the applicant, from the limits of the proposed mine workings to the ground surface; and

(IV) The areal extent of predicted subsidence related phenomena within the permit and adjacent area.

(ii) A detailed description of material subsidence damage or diminution of reasonably foreseeable use of structures and renewable resource lands which could result from the occurrence of subsidence related phenomena predicted in accordance with Rule 2.05.6 within the permit and adjacent area, including consideration of the following:

(A) with respect to structures, changes which make it technologically or economically infeasible to promptly restore the affected structures to the condition they would be in if subsidence had not occurred.

(B) with respect to renewable resource lands, changes which disrupt an aquifer, or a recharge area to an aquifer, which serves as a beneficial use of water or changes which make it technologically or economically infeasible to restore the productivity of the affected renewable resource lands, expressed in terms of food, fiber or forage, to the level it would be if subsidence had not occurred.

(C) with respect to diminution of reasonably foreseeable use of structures or renewable resource lands within the permit and adjacent area, the description shall consider the capability of those structures and lands, before and after subsidence occurrence, to support those uses described in Rule 2.05.6, giving consideration to factors such as soil and foundation characteristics, topography, vegetative cover, surface hydrology and groundwater hydrology.

(iii) If the subsidence survey determines that no material subsidence damage, diminution of reasonably foreseeable use of structures or renewable resource lands, or contamination, diminution or interruption of drinking, domestic or residential water supplies could result in the event of subsidence predicted to occur within the permit and adjacent area, and the Division concurs with that conclusion, the application shall include a subsidence monitoring program, consistent with Rule 2.05.6, designed to determine the accuracy of the subsidence prediction required by Rule 2.05.6(6)(e)(i)(D).

(iv) If the subsidence survey determines that material subsidence damage, diminution of reasonable foreseeable use or contamination, diminution or interruption of a drinking, domestic or residential water supply could result in the event of subsidence predicted to occur within the permit and adjacent area, or if the Division determines that such damage or diminution could occur, the application shall include a subsidence control plan as described in Rule 2.05.6(6)(f).

(f) A subsidence control plan, prepared by appropriately qualified professionals, shall contain the following information:

(i) A description of the physical conditions, such as depth of cover, seam thickness, and lithology, which affect the likelihood or extent of subsidence and subsidence-related damage;

(ii) A detailed description of the mining method and other measures to be taken which may affect subsidence including:

(A) The technique of coal removal, such as longwall mining, room and pillar removal, hydraulic mining or other methods, including the size, sequence, and timing for the development of underground workings as required by Rule 2.05.3(2)(b); and

(B) The location and extent of areas in which planned-subsidence mining methods will be used, including all areas where measures will be taken to prevent or minimize subsidence and subsidence related damage.

(iii) A detailed description of the measures to be taken to prevent subsidence from causing material subsidence damage, or lessening the value or reasonably foreseeable use of structures or renewable resource lands, or contamination, diminution, or interruption of drinking, domestic, or residential water supplies, including:

(A) The technique of coal removal, such as longwall mining, room and pillar removal, hydraulic mining or other methods, including the size, sequence, and timing for the development of underground workings as required by Rule 2.05.3(2)(b); and

(B) Measures, if any, to be taken in the mine to reduce the likelihood of subsidence, including such measures as:

(I) Back stowing or backfilling of voids;

(II) Leaving support pillars of coal; and

(III) Areas in which no coal removal is planned, including a description of the overlying area to be protected by leaving coal in place.

(C) Measures to be taken on the surface to prevent material subsidence damage or lessening of the value or reasonably foreseeable use of structures or renewable resource lands, or contamination, diminution, or interruption of drinking, domestic, or residential water supplies including such measures as:

(I) Reinforcement of sensitive structures or features;

(II) Installation of footers designed to reduce damage caused by movement;

(III) Change of location of pipelines, utility lines or other features;

(IV) Relocation of movable improvements to sites outside the angle-of- draw; and

(V) Monitoring, if any, to determine the commencement and degree of subsidence so that other appropriate measures can be taken to prevent or reduce material subsidence damage.

(iv) A detailed description of the measures to be taken to mitigate the effects of any material subsidence damage, diminution of value or reasonably foreseeable use of structures or renewable resource lands, or contamination, diminution or interruption of drinking, domestic or residential water supplies which may occur, including one or more of the following as required in Rule 4.20.3(4):

(A) Restoration, replacement, or rehabilitation of structures and features, including approximate land-surface contours, to pre mining condition.

(B) Replacement of structures destroyed by subsidence.

(C) Purchase of structures prior to mining and restoration of the land after subsidence to condition capable of supporting and suitable for the structures and foreseeable land uses.

(D) Purchase before mining of non-cancellable premium pre-paid insurance policies payable to the surface owner in the full amount of the possible material subsidence damage, or diminution of reasonable foreseeable use of structures or renewable resource lands or other comparable measures.

(E) Promptly replace, as required in Rule 4.05.15, any drinking, domestic or residential water supply that is contaminated, diminished, or interrupted by underground mining activities.

(v) A detailed description of measures to be taken to determine the degree of material subsidence damage; or diminution of value or reasonably foreseeable use of structures or renewable resource lands; or of contamination, diminution or interruption of drinking, domestic or residential water supplies, including such measures as:

(A) The results of pre-subsidence surveys of all structures, surface features, renewable resource lands, and drinking, domestic or residential water supplies which might be materially damaged, or contaminated, diminished, or interrupted by subsidence.

(B) Monitoring, if any, proposed to measure deformations near specified structures or features or otherwise as appropriate for the operation.

(vi) Appropriate maps, prepared according to the standards of Rule 2.10, with the exception that the map shall be at a scale of 1:12,000 or larger if determined necessary by the Division, showing the underground workings, the location of any facilities, structures, renewable resource lands, or drinking, domestic or residential water supplies proposed for subsidence control, and the location and extent of areas in which planned-subsidence mining methods will be used including all areas where measures will be taken to prevent or minimize subsidence and subsidence-related damage.

(vii) A schedule for the submittal of a detailed plan of the underground workings, as required by Rule 4.20.1(3).

2.06REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

2.06.1Scope.

2.06 establishes minimum requirements for permits for the following special categories of surface coal mining and reclamation operations which are in addition to all applicable permit application requirements and procedures of Rule 2:

(1) Experimental practices mining; 134

(2) Mountaintop removal mining; 120(3)

(3) Steep slope mining; 120(4)

(4) Variances from approximate original contour restoration requirements for steep slope mining; 120(4)

(5) Prime farmlands; 110(2)(q)

(6) Variances for delay in contemporaneous reclamation requirement in combined surface and underground mining operations;

(7) Mining of alluvial valley floors; 131

(8) Augering; 120(2)(i)

(9) Coal processing plants or support facilities not located within the permit area of a specified mine; and

(10) In situ processing activities.

2.06.2Experimental Practices Mining.

(1) Scope. The provisions of 2.06.2 apply to any person who conducts or intends to conduct surface coal mining and reclamation operations under a permit authorizing the use of alternative mining practices on an experimental basis if the practices require a variance from the environmental protection performance standards of Rule 4. 134

(2) The purpose of 2.06.2 is to provide requirements for the permitting of surface coal mining and reclamation operations that encourage advances in mining and reclamation practices or allow post mining land use for industrial, commercial, residential or public use (including recreational facilities) on an experimental basis. It does not include small test plots of limited planned duration that affect a small percent of the total area being mined or reclaimed and that do not result in violations of any applicable air or water environmental regulations.

(3) Experimental practice means the use of alternative surface coal mining and reclamation operation practices for experimental or research purposes.

(4) No person shall engage in or maintain any experimental practice, unless that practice is first approved by the Board, upon the recommendation of the Division, and with the approval of the Director of the Office of Surface Mining as an authorized representative of the Secretary of the United States Department of the Interior. The Director must concur in the approval of any experimental practice and the approval of any revision which proposes significant alterations in the experimental practice before the experimental practice is authorized.

(5) Each person who desires to conduct an experimental practice shall submit application for approval of the experimental practice by the Board, upon the recommendation of the Division. The application shall contain appropriate descriptions, maps, plans, and data which show:

(a) The nature of the experimental practice, including a description of the performance standards for which variances are requested and the duration of the experimental practice;

(b) How use of the experimental practice:

(i) Encourages advances in mining and reclamation technology, or

(ii) Allows a post mining land use for industrial, commercial, residential, or public use, including recreational facilities, on an experimental basis, when the results are not otherwise attainable under these Rules and the Act.

(c) That the mining and reclamation operations proposed for using an experimental practice are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practice;

(d) That the experimental practice:

(i) Is potentially more or at least as environmentally protective, during and after the proposed mining operations, as those required under Rule 4;

(ii) Will not reduce the protection afforded public health and safety below that provided by the requirements of Rule 4;

(e) That the applicant will conduct special monitoring with respect to the experimental practice during and after the operations involved. The monitoring program shall:

(i) Insure the collection and analysis of sufficient and reliable data to enable the Board, upon the recommendation of the Division, to make adequate comparisons with other surface coal mining and reclamation operations employing similar experimental practices; and

(ii) Include requirements designed to identify, as soon as possible, potential risks to the environment and public health and safety from the use of the experimental practice.

(6) Each application shall set forth the environmental protection performance standards of Rule 4 which will be implemented, in the event the objective of the experimental practice is a failure.

(7) All experimental practices for which variances are sought shall be specifically identified within the newspaper advertisements by the applicant and the written notifications by the Division as required under 2.07.3.

(8) No experimental practice shall be authorized, unless the Board, after the recommendation by the Division, first finds, in writing, upon the basis of a complete application filed in accordance with the requirements of 2.06.2 that:

(a) The experimental practice meets all the requirements of 2.06.2(5)(b) 2.06.2(5)(e); and

(b) The experimental practice is based on a clearly defined set of objectives which can reasonably be expected to be achieved.

(9) Each permit which authorizes an experimental practice must contain conditions which specifically:

(a) Limit the experimental practice authorized to that approved by the Board and Director;

(b) Impose enforceable alternative environmental protection requirements; and

(c) Require the person to conduct the periodic monitoring, recording and reporting program set forth in the application, with such additional requirements as the Board or the Director may require.

(10) Each permit which authorizes the use of an experimental practice shall be reviewed in its entirety at least every 2 1/2 years by the Division. After review, the Board shall require by order, supported by written findings, any reasonable revision or modification of the permit provisions necessary to ensure that the operations involved are conducted to fully protect the environment and public health and safety. Any person who is or may be adversely affected by the order shall be provided with an opportunity for a hearing by the Board pursuant to 2.07. The hearing must be requested within 30 days after the issuance of the order.

2.06.3 Mountaintop Removal Mining.

(1) Scope. 2.06.3 applies to any person who conducts or intends to conduct surface mining activities by mountaintop removal mining. 120(3)

(2) Mountaintop removal mining means surface mining activities, where the mining operation removes an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill, except as provided for in 4.26.2(2), by removing substantially all of the overburden off the bench and creating a level plateau or a gently rolling contour, with no highwalls remaining, which is capable of supporting post mining land uses in accordance with the requirements of 2.06.3. 120(3)(a) 120(3)(b)

(3) The Division may issue a permit for mountaintop removal mining, without regard to the requirements of 4.14.1-4.14.5, to restore the lands disturbed by such mining to their approximate original contour, if it first finds, in writing, on the basis of a complete application, that the following requirements are met: 120(3)(b)

(a) The proposed post mining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use and, if:

(i) After consultation with the appropriate land-use planning agencies, if any, the proposed land use is deemed by the Division to constitute an equal or better economic or public use of the affected land compared with the pre mining use;

(ii) The applicant demonstrates compliance with the requirements for acceptable alternative post mining land uses in 4.16;

(iii) The applicant has presented specific plans for the proposed post mining land use and appropriate assurances that such will be as follows:

(A) Compatible with adjacent land uses and existing State and local land use plans and programs;

(B) Obtainable according to data regarding expected need and market;

(C) Assured of investment in necessary public facilities;

(D) Supported by commitments from public agencies where appropriate;

(E) Practicable with respect to private financial capability for completion of the proposed use;

(F) Planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the post mining land use; and

(G) Designed by a registered engineer in conformance with professional standards established to assure the stability, drainage, and configuration necessary for the intended use of the site.

(iv) The Division has provided, in writing, an opportunity of not more than 60 days to review and comment on such proposed use to the Board of County Commissioners in which the land is located and any State or Federal agency which the Division determines to have an interest in the proposed use.

(b) The applicant has demonstrated that, in place of restoration of the land to be affected to the approximate original contour under 4.14.1-4.14.5, the operation will be conducted in compliance with the requirements of 4.26.

(c) The special performance standards for mountaintop removal of 4.26 are made a specific condition of the permit.

(d) All other requirements of the Act, these Rules, and the regulatory program are met by the proposed operations.

(e) The permit is clearly identified as being for mountaintop removal mining.

(4)

(a) Any permits incorporating a variance issued under 2.06.3 shall be reviewed by the Division to evaluate the progress and development of mining activities and to establish that the permittee is proceeding in accordance with the terms of the variance, as follows: 120(3)(e)

(i) Within the six month period preceding the end of the third year from the date of its issuance;

(ii) Before each permit renewal; and

(iii) Not later than the middle of each permit term.

(b) Any review required under 2.06.3(4)(a) need not be held if the permittee has demonstrated and the Division finds, in writing, within three months before the scheduled review, that all operations under the permit are proceeding and will continue to be conducted in accordance with the terms of the permit and requirements of the approved schedules, reclamation plan and the Act.

(c) The terms and conditions of a permit for mountaintop removal mining may be modified at any time by the Division, if it determines that more stringent measures are necessary to insure that the operation involved is conducted in compliance with the requirements of the Act and these Rules.

2.06.4Steep Slope Mining.

(1) Scope. 2.06.4 applies to any person who conducts or intends to conduct steep slope mining and reclamation operations, except:

(a) Where an operator proposes to conduct surface coal mining and reclamation operations on flat or gently rolling terrain, leaving a plain or predominantly flat area, but on which an occasional steep slope is encountered as the mining operation proceeds; 120(4)

(b) Where a person obtains a permit for mountaintop removal mining; or

(c) To the extent that a person obtains a permit incorporating a variance under 2.06.5.

(2) Any application for a permit for surface coal mining and reclamation operations covered by 2.06.4 shall contain sufficient information to establish that the operations will be conducted in accordance with the steep slope performance standards in 4.27.3.

(3) No permit shall be issued to any operations covered by this 2.06.4 unless the Division finds, in writing, that in addition to meeting all other requirements of the performance standards, the operation will be conducted in accordance with the requirements of 4.27.3.

2.06.5Permits Incorporating Variances from Approximate Original Contour Restoration Requirements for Steep Slope Mining.

(1) Scope. 2.06.5 applies to non mountaintop removal steep slope surface coal mining and reclamation operations, where the operation is not to be reclaimed to achieve the approximate original contour required by 4.14.1-4.14.6 and 4.27.3.

(2) The Board or Division shall issue a permit for surface mining activities incorporating a variance from the requirement for restoration of the affected lands to their approximate original contour only if it first finds, in writing, that all of the following requirements are met:

(a) The applicant has demonstrated that the purpose of the variance is to make the lands to be affected within the permit area suitable for an industrial, commercial, agricultural, residential, or public use post mining land use. 120(5)(b)

(b) The proposed use, after consultation with the appropriate land-use planning agencies, if any, constitutes an equal or better economic or public use. 120(5)(c)(I)

(c) The applicant has demonstrated compliance with the requirements for acceptable alternative post mining land uses of 4.16. 120(5)(c)(I)

(d) The applicant has demonstrated that the watershed of lands within the proposed permit area and adjacent areas will be improved by the operations. The watershed will only be deemed improved if: 120(5)(c)(II)

(i) There will be a reduction in the amount of total suspended solids or other pollutants discharged to ground or surface waters from the permit area as compared to such discharges prior to mining, so as to improve public or private uses or the ecology of such waters; or, there will be reduced flood hazards within the watershed containing the permit area by reduction of the peak flow discharges from precipitation events or thaws;

(ii) The total volume of flows from the proposed permit area, during every season of the year, will not vary in a way that adversely affects the ecology of any surface water or any existing or planned use of surface or ground water; and

(iii) The appropriate State environmental agencies approve the plan.

(e) The applicant has demonstrated that the owner of the surface of the lands within the permit area has knowingly requested, in writing, as part of the application, that a variance be granted. The request shall be made separately from any surface owner consent given for operations under 2.03.6, and shall show an understanding that the variance could not be granted without the surface owner's request. 120(5)(b)

(f) The applicant has demonstrated that the proposed operations will be conducted in compliance with the requirements of 4.27.4. 120(5)(d)

(g) All other requirements of the Act, these Rules, and the regulatory program will be met by the proposed operations. 120(5)(e)

(3) Any permits incorporating a variance issued under 2.06.5 shall be reviewed by the Division to evaluate the progress and development of the mining activities and to establish that the permittee is proceeding in accordance with the terms of the variance, as follows: 120(5)(f)

(a) Within the six month period preceding the end of the third year from the date of its issuance;

(b) Before each permit renewal; and

(c) Not later than the middle of each permit term.

(4) If the permittee demonstrates to the Division at any of the times specified in 2.06.5(3) that the operations involved have been and continue to be conducted in compliance with the terms and conditions of the permit, the requirements of the Act, these Rules, and the regulatory program, the review required at that time need not be held.

(5) The terms and conditions of a permit incorporating a variance under 2.06.5 may be modified at any time by the Division or Board if it determines that more stringent measures are necessary to insure that the operations involved are conducted in compliance with the requirements of this Act and these Rules.

(6) If a variance is granted under 2.06.5:

(a) The requirements of 4.27 shall be made a specific condition of the permit, and

(b) The permit shall be specifically marked as containing a variance from approximate original contour.

2.06.6Prime Farmlands.

(1) Scope. 2.06.6 applies to any person who conducts or intends to conduct surface coal mining activities on prime farmlands historically used for cropland. Areas where mining is authorized under permits issued or mining plans approved prior to August 3, 1977, including lands that contain part of a continuous recoverable coal seam that was being mined in a single continuous mining pit (or multiple pits if the lands are proven to be part of a single continuous surface coal mining operation) began under a permit issued prior to August 3, 1977, and the permittee had a legal right to mine the lands prior to August 3, 1977, through ownership, contract or lease, but not including an option to buy lease or contract, are exempt from the requirements of this rule. 110(2)(q) 114(4) 120(2)(g)

A single continuous surface coal mining operation is presumed to consist only of a single continuous mining pit under a permit issued prior to August 3, 1977, but may include non contiguous parcels if the operator can prove by clear and convincing evidence that, prior to August 3, 1977, the non contiguous parcels were part of a single permitted operation. For the purposes of this paragraph, clear and convincing evidence includes, but is not limited to, contracts, leases, deeds or other properly executed legal documents (not including options) that specifically treat physically separate parcels as one surface coal mining operation.

(2) Application contents for prime farmland. If land within the proposed permit area is prime farmland under 2.04.12, the applicant shall submit a plan for the mining and restoration of the land. Each plan shall contain, at a minimum:

(a) A soil survey of the permit area according to standards established by the U.S.D.A. Natural Resources Conservation Service for the National Cooperative Soil Survey. These standards are described in the National Soil Survey Handbook (Soil Survey Staff, 2001).

(i) This publication is hereby incorporated by reference as it exists on the date of adoption of these rules and does not include later amendments to or editions of this publication. The National Soil Survey Handbook is available for inspection at the Division's Denver office, at the Denver office of the U.S.D.I. Office of Surface Mining Reclamation and Enforcement, and at the Colorado state office and web site of the U.S.D.A. Natural Resources Conservation Service.

(ii) The soil survey shall include descriptions of soil mapping units and representative soil profiles. Descriptions of soil mapping units and representative profiles shall include such necessary information as determined by the U.S.D.A. Natural Resources Conservation Service, including, but not limited to, depth, pH, and range of density of soil horizons, determined in accordance with National Cooperative Soil Survey Standards as established under Rule 2.06.6, for each prime farmland soil to be disturbed by mining. Soil profile descriptions of representative profiles from the locality may be used to comply with the requirements of this section if the use of such descriptions is approved by the U.S.D.A. Natural Resources Conservation Service. The Division may request the operator to provide information on other physical and chemical soil properties as needed to make a determination that the operator has the technological capability to restore the prime farmland within the permit area to the soil reconstruction standards of Rule 4.25.

(b) The proposed method and type of equipment to be used for removal, storage, and replacement of the soil in accordance with 4.25.

(c) The location of areas to be used for the separate stockpiling of the soil and plans for soil stabilization before redistribution.

(d) If applicable, documentation, such as agricultural school studies or other scientific data from comparable areas, that supports the use of other suitable material, instead of the A, B, or C soil horizons, to obtain on the restored area equivalent or higher levels of yield as non mined prime farmlands in the surrounding area under equivalent levels of management.

(e) Plans for seeding or cropping the final graded disturbed land and the conservation practices to be used to adequately control erosion and sedimentation and restoration of an adequate soil moisture regime, during the period from completion of regrading until release of the performance bond. Proper adjustment for seasons must be proposed so that final graded land is not exposed to erosion during seasons when vegetation or conservation practices cannot be established due to weather conditions.

(f) Available agricultural school studies or other scientific data for areas with comparable soils, climate, and management (including water management) that demonstrate that the proposed method of reclamation will achieve, within a reasonable time, equivalent or higher levels of yield after mining as existed before mining.

(g) The productivity under high level of management, as determined by the U.S.D.A. Natural Resources Conservation Service, of each prime farmland soil to be disturbed by mining, for any crop to be used in determining success of revegetation on prime farmland soil. Where the U.S.D.A. Natural Resources Conservation Service has not made such a determination, productivity will be estimated based on crop yield information for the prime farmland soils to be disturbed by mining from within the permit area or the surrounding locality.

(h) In all cases, soil productivity for prime farmlands shall be returned to equivalent levels of yield as non mined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to 2.06.6.

(3) Consultation with the State Conservationist of the U.S. Natural Resources Conservation Service. Before any permit is issued for areas that include prime farmlands, the Division shall consult with the State Conservationist of the U.S. Natural Resources Conservation Service. The Conservationist shall be provided, for review and comment, the proposed method of soil reconstruction in this plan submitted under Rule 2.06.6(2).

(4) Issuance of permit. A permit for the mining and reclamation of prime farmland may be granted by the Division, if it first finds, in writing, upon the basis of a complete application that:

(a) The approved proposed post mining land use of these prime farmlands will be cropland;

(b) The permit incorporates as specific conditions the contents of the plan submitted under Rule 2.06.6 After consideration of any revisions to that plan suggested by the State Conservationist of the U.S. Natural Resources Conservation Service under Rule 2.06.6(3);

(c) The applicant has the technological capability to restore the prime farmland, within a reasonable time, to equivalent or higher levels of yield as non mined prime farmland in the surrounding area under equivalent levels of management; and

(d) The proposed operations will be conducted in compliance with the requirements of 4.25 and other environmental protection performance and reclamation standards of these Rules for mining and reclamation of prime farmland.

2.06.7Variances for Delay in Contemporaneous Reclamation Requirements in Combined Surface and Underground Mining Operations.

(1) Scope. 2.06.7 applies to any person who conducts or intends to conduct combined surface mining activities and underground mining activities, where contemporaneous reclamation as required by 4.13 is not practicable and a delay is requested to allow underground mining activities to be conducted before the reclamation operation for the surface mining activities can be completed. 120(2)(p)

(2) Objective. The objective of 2.06.7 is to allow for delay in reclamation of surface mining activities, if that delay will allow underground mining activities to be conducted to ensure both maximum practical recovery of coal resources and to avoid multiple future disturbances of surface lands or waters.

(3) Application contents for variances. Any person who desires to obtain a variance under 2.06.7 shall file with the Division a complete application for the surface mining activities and underground mining activities which are to be combined. The mining and reclamation operation plans for these permits shall contain appropriate narratives, maps prepared in accordance with 2.10, and plans, which:

(a) Show why the proposed underground mining activities are necessary or desirable to assure maximum practical recovery of coal; 120(2)(p)(I)(B)

(b) Show how multiple future disturbances of surface lands or waters will be avoided; 120(2)(p)(I)(B)

(c) Identify the specific surface areas for which a variance is sought and the particular Sections of the Act, these Rules, and the regulatory program for which a variance is being sought.

(d) Show how the activities will comply with 4.22 and other applicable requirements of these Rules;

(e) Show why the variance sought is necessary for the implementation of the proposed underground mining activities; 120(2)(p)(I)(D)

(f) Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the reclamation of surface mining activities is delayed; and 120(2)(p)(I)(E)

(g) Show how storage of spoil will be conducted to comply with the requirements of the Act, and the applicable performance standards of rule 4. 120(2)(p)(I)(F)

(4) Issuance of a permit. A permit incorporating a variance under 2.06 may be issued by the Division or Board, if it first finds, in writing, upon the basis of a complete application filed in accordance with 2.06 that:

(a) The applicant has presented, as part of the permit application, specific, feasible plans for the proposed underground mining activities; 120(2)(p)(I)(A)

(b) The proposed underground mining activities are necessary or desirable to assure maximum practical recovery of the mineral resource and will avoid multiple future disturbances of surface land or waters; 120(2)(p)(I)(B)

(c) The applicant has satisfactorily demonstrated that the application for the surface coal mining activities and underground mining activities conforms to the requirements of these Rules and that all other permits necessary for the underground mining activities have been issued by the appropriate authorities; 120(2)(p)(I)(C)

(d) The surface area of surface coal mining activities proposed for the variance have been shown by the applicant to be necessary for implementing the proposed underground mining activities; 120(2)(p)(I)(D)

(e) No substantial adverse environmental damage, either on-site or off- site, will result from the delay in completion of reclamation otherwise required by Section 34-33-120(2)(p), C.R.S., and 4.13; 120(2)(p)(I)(E)

(f) The operations will, insofar as a variance is authorized, be conducted in compliance with the requirements of 4.22 and these Rules;

(g) Provisions for storage of spoil will comply with the applicable performance standards of Rule 4. 120(2)(p)(I)(F)

(h) Liability under the performance bond required to be filed by the applicant with the Division shall be for the duration of the underground mining activities and until all requirements of these Rules have been complied with; and 120(2)(p)(IV)(i) The permit for the surface coal mining activities contains specific conditions:

(i) Delineating the particular surface areas for which a variance is authorized;

(ii) Identifying the particular requirements of 4.22 and these Rules which are to be complied with; and

(iii) Providing a detailed schedule for compliance with the particular requirements of 4.22 and these Rules identified under 2.06.7(4)(i).

(5) Review of permit containing variances. Variances granted under permits issued under 2.06.7 shall be reviewed by the Division no later than 3 years from the dates of issuance of the permit and any permit renewals. 120(2)(p)(III)

2.06.8Surface Coal Mining and Reclamation Operations on Areas, or Adjacent to Areas, Including Alluvial Valley Floors

(1) Scope. Rule 2.06.8 applies to each person who conducts or intends to conduct surface coal mining and reclamation operations in, adjacent to or under a valley holding a stream.

(2) No person shall engage in surface coal mining and reclamation operations subject to 2.06.8, except under a permit issued by the Division or Board in accordance with 2.06.8.

(3) Alluvial Valley Floor Determination.

(a) Any person who proposes to engage in surface coal mining operations, may, prior to making an application for a permit, request in writing that the Board give an informal opinion on whether or not the area of the land to be affected by such proposed operations is in, adjacent to, or under an alluvial valley floor. The Board's informal opinion shall be based upon sound scientific data in the possession of the Division, Board, or other State agencies at the time of the request, shall be in writing, and shall be advisory in nature. 131

(b) Before applying for a permit or in conjunction with an application for a permit to conduct, or before conducting surface coal mining and reclamation operations within a valley holding a stream or in a location where the adjacent area includes any stream, the applicant shall either affirmatively demonstrate, based on available data, the presence of an alluvial valley floor, or submit to the Division the results of a field investigation of the proposed permit area and adjacent area. The field investigations shall include sufficiently detailed geologic, hydrologic, land use, soils, and vegetation studies on areas required to be investigated by the Division after consultation with the applicant, to enable the Division or Board to make an evaluation regarding the existence of the probable alluvial valley floor in the proposed permit area or adjacent area and to determine which areas, if any, require more detailed study in order to allow the Division or Board to make a final determination regarding the existence of an alluvial valley floor. Studies performed during the investigation by the applicant or subsequent studies as required of the applicant by the Division shall include an appropriate combination, adapted to site- specific conditions, of:

(i) Mapping of unconsolidated streamlaid deposits holding streams including, but not limited to, geologic maps of unconsolidated deposits, maps of streams, delineation of surface watersheds and directions of shallow ground water flows through and into the unconsolidated deposits, topography showing local and regional terrace levels, and topography of terraces, flood plains and channels showing surface drainage patterns.

(ii) Mapping of all lands that are currently or were historically flood irrigated, showing the location of each diversion structure, ditch, dam and related reservoir, irrigated land, and topography of those lands.

(iii) Mapping of all lands included in the area in accordance with 2.06.8(3) and subject to agricultural activities, showing the area in which different types of agricultural lands, such as flood irrigated lands, pasture lands and undeveloped rangelands exist, and accompanied by measurements of vegetation in terms of productivity and type.

(iv) Documentation that areas identified in 2.06.8(3) are, or are not, sub irrigated, based on ground water monitoring data, representative water quality, soil moisture measurements, and measurements of rooting depth, soil mottling, and water requirements of vegetation.

(v) Documentation, based on representative sampling, that areas identified under 2.06.8(3) are, or are not, flood irrigable, based on streamflow, water quality, water yield, soils measurements, and topographic characteristics.

(vi) Analysis of a series of aerial photographs, including color infrared imagery flown at a time of year to show any late summer and fall differences between upland and valley floor vegetative growth and of a scale adequate for reconnaissance identification of areas that may be alluvial valley floors.

(c) Based on the investigations conducted under 2.06.8(3)(b), the Division shall make a determination of the presence or absence of alluvial valley floors, the extent of any alluvial valley floors within the proposed permit area and adjacent areas that may be affected, and whether any stream in those areas may be excluded from further consideration as lying within an alluvial valley floor.

(i) The Division shall determine that an alluvial valley floor exists if it finds that:

(A) Unconsolidated streamlaid deposits holding streams of sufficient size and inherent productive potential to support agricultural activities are present. If not currently being farmed, the minimum size of the alluvial body shall be based upon the accepted regional practice.

(B) There is sufficient water to support agricultural activities as evidenced by:

(I) The existence of flood irrigation in the area in question or its historical use;

(II) The capability of an area to be flood irrigated, based on streamflow water yield, soils, water quality, topography and regional practices; or

(III) Sub irrigation of the lands in question, derived from the ground water system of the valley floor.

(ii) The Division shall determine that an alluvial valley floor does not exist if it finds that:

(A) No streamlaid deposits meeting the pertinent size criteria as set forth under 2.06.8(3)(c)(i)(A) are present as determined from geologic maps, results of field investigations or similar studies;

(B) There is insufficient water available to support flood irrigation or sub irrigation agricultural activities based on established regional practices determined from hydrologic characteristics, and analysis of the potential of the area for successful irrigation based upon its soils, climate, vegetation, and land use; or

(C) The area is generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation and wind blown deposits.

(iii) A negative finding reached in accordance with 2.06.8(3)(c)(ii) is sufficient to satisfy the requirements of 2.06.8(3) when submitted as part of a permit application.

(4) Application contents for operations affecting alluvial valley floors.

(a) If land within the proposed permit area or adjacent area is identified as an alluvial valley floor and the proposed surface coal mining operation may affect an alluvial valley floor or waters that supply alluvial valley floors, the applicant shall submit a complete application for the proposed surface coal mining and reclamation operations, to be used by the Division or Board, together with other relevant information, including an appropriate combination of information required by 2.06.8(3), as a basis for approval or denial of the permit. The complete application shall include detailed surveys and baseline data required by the Division for the determination of:

(i) The essential hydrologic functions of the alluvial valley floor which might be affected by the mining and reclamation process. The information required by this subparagraph shall evaluate those factors which contribute to the collecting, storing, regulating and making the natural flow of water available for agricultural activities on the alluvial valley floor and shall include, but are not limited to:

(A) Factors contributing to the function of collecting water, such as amount, rate and frequency of rainfall and runoff, surface roughness, slope and vegetative cover, infiltration and evapotranspiration, relief, slope and density of drainage channels;

(B) Factors contributing to the function of storing water, such as permeability, infiltration, porosity, depth and direction of ground water flow and water holding capacity;

(C) Factors contributing to the function of regulating the flow of surface and ground water, such as the longitudinal profile and slope of the valley and channels, the sinuosity and cross sections of the channels, interchange of water between streams and associated alluvial and bedrock aquifers and rates and amount of water supplied by these aquifers; and

(D) Factors contributing to water availability, such as the presence of flood plains and terraces suitable for agricultural activities.

(ii) The significance to farming of the area to be affected;

(iii) Whether the operation will avoid during mining and reclamation the interruption, discontinuance, or preclusion of farming on flood irrigated or subirrigated alluvial valley floors;

(iv) Whether the operation will cause, or presents an unacceptable risk of causing, material damage to the quantity or quality of surface or ground waters that supply the alluvial valley floor;

(v) The effectiveness of proposed reclamation with respect to requirements of the Act and these Rules; and

(vi) Specific environmental monitoring required to measure compliance with 4.24 during and after mining and reclamation operations.

(b) Certain information specified under 2.06.8(4)(a) is not required under the following circumstances:

(i) Information relating to 2.06.8(4)(a)(ii), (iii) and (iv) is not required for operations to which the statutory exclusions of 2.06.8(5)(b) apply; and

(ii) Information relating to 2.06.8(4)(a)(iii) and (iv) is not required if land use on the alluvial valley floor has been undeveloped rangeland which is not significant to farming or if the Division or Board finds that the farming which will be interrupted, discontinued or precluded is of such small acreage as to be of negligible impact to the farm's agricultural production.

(c) Information required under this paragraph shall include an appropriate combination of, but not be limited to:

(i) Geologic data, including geologic structure, and surficial geologic maps, and geologic cross-sections,

(ii) Soils and vegetation data, including a detailed soil survey and chemical and physical analyses of soils, a vegetation map and narrative descriptions of quantitative and qualitative surveys, and land use data, including an evaluation of crop yields;

(iii) Surveys and data required under this paragraph for areas designated as alluvial valley floors because of their flood irrigation characteristics shall also include, at a minimum, surface hydrologic data, including streamflow, runoff, sediment yield, and water quality analyses describing seasonal variations over at least one full year, field geomorphic surveys and other geomorphic studies;

(iv) Surveys and data required under this paragraph for areas designated as alluvial valley floors because of their sub irrigation characteristics, shall also include, at a minimum, geohydrologic data including alluvium thickness observation well establishment for purposes of water level measurements, ground water contour maps, testing to determine aquifer characteristics that affect waters supplying the alluvial valley floors, well and spring inventories, and water quality analyses describing seasonal variations over at least one full year, and physical and chemical analysis of overburden to determine the effect of the proposed mining and reclamation operations on water quality and quantity;

(v) Plans showing the operation will avoid, during mining and reclamation, interruption, discontinuance or preclusion of farming on the subirrigated or flood irrigated alluvial valley floors and will not materially damage the quantity or quality of water in surface and ground water systems that supply those alluvial valley floors;

(vi) Maps showing farms that could be affected by the mining and statements of the type and quantity of farming performed on the alluvial valley floor and its relationship to the farm's total agricultural activity; and

(vii) Such other relevant data as the Division may require, for good cause shown.

(d) Permit applications may comply with the requirements of 2.06.8(4)(c)(iii) and (iv) with data collected over a shorter period of time or extrapolated by an expert in the field from documented data on water quality and quantity of similar areas, provided that information provided is sufficient to make the determinations required under 2.06.8(5) and that the data used by the expert is included within the permit application, the expert opinion is approved by the Division, and all such data are made available to the public for review and comment.

(e) The surveys required by 2.06.8(3) should identify those geologic, hydrologic, and biologic characteristics of the alluvial valley floor necessary to support the essential hydrologic functions of any alluvial valley floor. Such characteristics which must be evaluated in a complete application include, but are not limited to:

(i) Characteristics supporting the function of collecting water which include, but are not limited to:

(A) The amount and rate of runoff and a water balance analysis, with respect to rainfall, evapotranspiration, infiltration and ground water recharge;

(B) The relief, slope, and density of the network of drainage channels;

(C) The infiltration, permeability, porosity and transmissivity of unconsolidated deposits of the valley floor that either constitute the aquifer associated with the stream or lie between the aquifer and the stream; and

(D) Other factors that affect the interchange of water between surface and ground water systems, including the depth to ground water, the direction of ground water flow, the extent to which the stream and associated alluvial ground water aquifers provide recharge to, or are recharged by, bedrock aquifers.

(ii) Characteristics supporting the function of storing water which include, but are not limited to:

(A) Surface roughness, and vegetation of the channel, flood plain, and low terraces that retard the flow of surface waters;

(B) Porosity, permeability, transmissivity, water-holding capacity, saturated thickness and volume of aquifers associated with streams, including alluvial aquifers, perched aquifers, and other water bearing zones found beneath valley floors; and

(C) Moisture held in soils or the plant growth medium within the alluvial valley floor, and the physical and chemical properties of the subsoil that provide for sustained vegetation growth or cover during extended periods of low precipitation.

(iii) Characteristics supporting the function of regulating the flow of water which include, but are not limited to:

(A) The geometry and physical character of the valley, expressed in terms of the longitudinal profile and slope of the valley and the channel, the sinuosity of the channel, the cross section, slopes and proportions of the channels, flood plains and low terraces, the nature and stability of the stream banks and the vegetation established in the channels and along the stream banks and floor plains;

(B) The nature of surface flows as shown by the frequency and duration of flows of representative magnitude including low flows and floods; and

(C) The nature of interchange of water between streams, their associated alluvial aquifers and any bedrock aquifers as shown by the rate and amount of water supplied by the stream to associated alluvial and bedrock aquifers (i.e., recharge) and by the rates and amounts of water supplied by aquifers to the stream (i.e., baseflow); and

(iv) Characteristics which make water available and which include, but are not limited to, the presence of land forms including flood plains and terraces suitable for agricultural activities.

(5)

(a) No permit or permit revision application for surface coal mining and reclamation operations shall be approved by the Division or Board unless the application demonstrates and the Division or Board finds in writing, on the basis of information set forth in the application, that the proposed surface coal mining operation would: 114(2)(e)(I),(II)

(i) Not interrupt, discontinue, or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated, excluding undeveloped rangelands which are not significant to farming on said alluvial valley floors and those lands upon which the Division or Board finds that the farming which will be interrupted, discontinued, or precluded is of such small acreage as to be of negligible impact to the farm's agricultural production;

(ii) Not materially damage the quantity or quality of water in surface or ground water systems that supply those alluvial valley floors described in 2.06.8(5)(a)(i) above; and

(iii) Comply with the requirements of 4.24 and other applicable requirements of the Act and the regulations with respect to alluvial valley floors.

(b)

(i) The requirements of 2.06.8(5)(a)(i) and (ii) above shall not apply to any surface coal mining and reclamation operation which, in the year preceding August 3, 1977, either: 114(2)(e)(I)(A)

(A) Produced coal in commercial quantities and was located within or adjacent to alluvial valley floors; or

(B) Obtained specific permit approval to conduct surface coal mining and reclamation operations within an alluvial valley floor.

(ii) For surface coal mining and reclamation operations which satisfy the requirements of 2.06.8(5)(b)(i) above, the geographic extent of lands eligible for such exemption shall be limited to:

(A) For surface coal mining activities, those lands which were identified in a reclamation plan approved by the Board prior to August 3, 1977; or

(B) For underground mining activities,

I. The actual extent of the mine workings on August 3, 1977, and

II. adjacent lands for which there existed substantial demonstrable financial or regulatory commitment on August 3, 1977 This will be determined by the Division on a case-by-case basis using all available information.

(c) Criteria for determining whether a surface coal mining operation will materially damage the quantity or quality of waters include, but are not limited to:

(i) Probable increases in specific conductance of waters supplied to an alluvial valley floor to levels above the threshold value at which crop yields on the alluvial valley floor decrease.

(A) Salt tolerance threshold values shall be based on applicable published research or testing specific to the situation, as approved by the Division.

(B) Probable increases in specific conductance of water supplied to an alluvial valley floor shall not exceed the salt tolerance threshold value of any crop grown on the alluvial valley floor, unless the applicant demonstrates that the projected decrease in productivity is negligible to the production of one or more farms.

(ii) Potential increases in the average depth to water saturated zones (during the growing season) located within the root zone of the alluvial valley floor that would reduce the amount of subirrigated agricultural land compared to pre mining conditions.

(iii) Potential decreases in surface flows that would reduce the amount of irrigable land compared to pre mining conditions.

(iv) Potential changes in the surface or ground water systems that reduce the area available to agriculture as a result of flooding or increased saturation of the root zone.

(6) For the purposes of 2.06.8, a farm is one or more land units on which agricultural activities are conducted. A farm is generally considered to be the combination of land units with acreage and boundaries in existence prior to August 3, 1977, or if established after August 3, 1977, with those boundaries based on enhancement of the farm's agricultural productivity and not related to surface coal mining operations.

2.06.9Augering.

(1) Scope. 2.06.9 applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing augering operations. 120(2)(i)

(2) Any application for a permit for operations covered by 2.06.9 shall contain, in the mining and reclamation plan, a description of the augering methods to be used and the measures to be used to comply with 4.23.

(3) No permit shall be issued for any operations covered by 2.06.9 unless the Division or Board finds, in writing, that in addition to meeting all other applicable requirements of these Rules, the operation will be conducted in compliance with 4.23.

2.06.10Coal Processing Plants and Support Facilities Not Located Within the Permit Area.

(1) Scope. 2.06.10 applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing coal processing plants or support facilities as described in 4.04 not within a permit area of a specific mine. Any person who operates such a processing plant or support facility shall have obtained a permit from the Division or Board under the regulatory program in accordance with the requirements of 2.06.10. 103(26) 109(1), 120

(2) Any application for a permit for operations covered by 2.06.10 shall contain in the mining and reclamation plan, specific plans, including descriptions, maps, prepared to the standards of 2.10, and cross-sections of the construction, operation, maintenance, and removal of the processing plants and associated support facilities. The plan shall demonstrate that those operations will be conducted in compliance with 4.28.

(3) No permit shall be issued for any operation covered by 2.06.10, unless the Division or Board finds, in writing, that, in addition to meeting all other applicable requirements of these Rules, the operations will be conducted in compliance with the requirements of 4.28.

2.06.11In Situ Processing Activities.

(1) Scope. 2.06.11 applies to any person who conducts or intends to conduct surface coal mining and reclamation operations utilizing in situ processing activities. 103(26) 109(1), 120

(2) Any application for a permit for operations covered by 2.06.11 shall be made according to all requirements of these Rules applicable to underground mining activities. In addition, the mining and reclamation operations plan for operations involving in situ processing activities shall contain information establishing how those operations will be conducted in compliance with the requirements of 4.29, including:

(a) Delineation of proposed holes and wells and production zone for approval of the Division;

(b) Specifications of drill holes and casings proposed to be used;

(c) A plan for treatment, confinement or disposal of all acid-forming, toxic-forming or radioactive gases, solids, or liquids constituting a fire, health, safety or environmental hazard caused by the mining and recovery process; and

(d) Plans for monitoring surface and ground water and air quality, as required by the Division.

(3) No permit shall be issued for operations covered by 2.06.11, unless the Division or Board first finds, in writing, upon the basis of a complete application made in accordance with 2.06.11(2), that the operation will be conducted in compliance with all requirements of these Rules relating to underground mining activities and 4.29.

2.06.12Surface Coal Mining and Reclamation Operation Requirements Involving the Removal of Coal Refuse Piles.

(1) Scope. The provisions of 2.06.12 shall apply to any person engaged in surface coal mining and reclamation operations who removes or intends to remove more than 250 tons of coal from coal refuse piles within 12 consecutive calendar months in any one location. No person shall engage in operations subject to 2.06.12 except under a permit or approval of a revision to an existing permit issued by the Division in accordance with the requirements of 2.06.12.

(2) Application contents. Each application for a permit or approval of a revision to an existing permit subject to the requirements of 2.06.12 shall contain that information required by 2.03, 2.04, 2.05, and 2.06 which is necessary for the Division to make a written determination of compliance with all requirements of the Act and these Rules in accordance with 2.07 .6. The information necessary to satisfy this requirement shall be determined in consultation with the Division and consideration shall be given to the specific conditions of the site and scope of the proposed operation.

2.07PUBLIC PARTICIPATION AND APPROVAL OF PERMIT APPLICATIONS

2.07.1 Scope

This rule establishes the requirements for:

(1) Public participation in the permit process;

(2) The review of permit applications and decisions on these applications by the Division and Board;

(3) Approval or disapproval of permits to conduct surface coal mining and reclamation operations and for the terms and conditions of permits issued;

(4) Identification and management of improvidently issued permits; and

(5) post-permit issuance requirements for the Division and applicant.

2.07.2Objectives.

The objectives of 2.07 are to:

(1) Provide for broad and effective public participation in the review of applications and the issuance or denial of permits;

(2) Ensure prompt and effective review of each permit application by the Division or Board; and

(3) Provide the minimum requirements for the terms and conditions of permits issued and the criteria for approval or denial of a permit.

2.07.3Government Agency and Public Comments on Permit Applications

(1) Upon submission of an application for permit or revision or renewal thereof, the Division shall, within 10 days of receipt of said application, review the submission and determine if it is complete. If the application is complete, the applicant shall be duly notified and the application shall be considered filed for purposes of the Act. If the application is incomplete, notice to that effect shall be mailed to the applicant within said 10- day period, and the applicant shall be given the opportunity to amend, review, or otherwise make said application complete. 118(1)

(2) At the time of submission of an application for a permit, permit revision, technical revision, or renewal of an existing permit, the applicant shall submit to the Division the proposed public notice announcing the filing of the application. The notice shall include, at a minimum, the information described in paragraphs (a) through (h) of this rule. Upon notification to the applicant that the application for a permit, permit revision, or renewal is complete, the applicant shall place the notice in a local newspaper of general circulation in the locality of said operation. This notice shall be published at least once a week for four consecutive weeks and shall contain, at a minimum, the following information:

(a) The name and business address of the applicant;

(b) A map or description which shall:

(i) Clearly show or describe towns, rivers, streams, or other bodies of water, local landmarks, and any other information, including routes, streets, or roads and accurate distance measurements, necessary to allow local residents to readily identify the proposed permit area;

(ii) Clearly show or describe the exact location and boundaries of the proposed permit area;

(iii) State the name of the U.S. Geological Survey 7.5-minute quadrangle map(s) which contain(s) the area shown or described; and

(iv) If a map is used, indicate the north point.

(c) The location where a copy of the application is available for public inspection under 2.07.3(4);

(d) The name and address of the Division to which written comments, objections, or requests for informal conference on the application may be submitted;

(e) If an applicant seeks a permit in which the affected area would be within 100 feet, measured horizontally, of the outside right-of-way of a public road except where mine access roads or haul roads join such right-of-way line, the notice shall include a concise statement describing that particular portion of the road which is located within 100 feet, measured horizontally, of the affected area. The notice shall also include a statement indicating that a public hearing, for the purpose of determining whether the interests of the public and affected landowners will be protected may be requested by contacting the Division in writing within 30 days after the last publication of the notice. The notice shall also state that any such hearing would be held in the locality of the proposed mining operation; and

(f) If an applicant seeks a permit involving relocation or closure of a public road, a concise statement identifying the road, describing the portion to be relocated or closed, the route of the proposed relocation and the duration and timing of the relocation or closure. The notice shall also include a statement indicating that a public hearing, for the purpose of determining whether the interests of the public and affected landowners will be protected may be requested by contacting the Division in writing within 30 days after the last publication of the notice. The notice shall also state that any such hearing would be held in the locality of the proposed mining operation; and

(g) If the application includes a request for an experimental practice, a statement indicating than an experimental practice is requested and identifying the provisions of those rules for which a variance is requested.

(h) An application for a permit revision or technical revision shall include in the notice a written description of the proposed revision and a map or description clearly identifying the lands specifically subject to the revision.

(3)

(a) Upon receipt of a complete application for a permit, a permit revision, or permit renewal, the Division shall issue written notification of:

(i) The applicant's intention to conduct surface coal mining and reclamation operations on a legally described tract of land; 118(3)

(ii) The application number;

(iii) Where a copy of the application may be inspected.

(iv) Where comments on the application may be submitted.

(b) The written notifications shall be sent to:

(i) Federal and State agencies and various local governmental bodies with jurisdiction over or an interest in the area of the proposed operations, including, but not limited to, the U. S. Department of Agriculture Natural Resource Conservation Service District Office, the local U. S. Army Corps of Engineers District Engineer, the National Park Service, municipalities, boards of county commissioners, State and Federal fish and wildlife agencies and the historic preservation officer;

(ii) Regional planning commissions, county planning agencies or other governmental planning agencies with jurisdiction to act with regard to land use, air or water quality in the area of the proposed operations;

(iii) Sewage and water treatment authorities, and water conservancy and water conservation districts, and water companies either providing sewage or water services to users in the area of the proposed operations, or having water sources or collection, treatment, or distribution facilities located in these areas; and the Federal or State government agencies with authority to issue all other permits and licenses needed by the applicant in connection with operations proposed in the application.

(c) These local bodies, agencies, or authorities may submit written comments to the Division, with respect to the effect of the proposed operation on the environment which is within their area of responsibility. Written comments regarding a permit, a permit revision or permit renewal may be submitted to the Division within 30 days of the last publication of the above notice. Written comments regarding technical revisions may be submitted to the Division within 10 days of the publication of the above notice. Such comments shall be immediately transmitted to the applicant by the Division and shall be made available to the public at the same locations as the permit application. 118(3)

(4)

(a) The applicant shall make a full copy of his or her complete application for a permit, permit revision, technical revision, or permit renewal, except for data and/or other information if it is determined by the Division to be confidential according to 2.07.5, available for the public to inspect and copy. This shall be done by filing a copy of the application submitted to the Division with the recorder at the courthouse of the county where the mining is proposed to occur, or another equivalent public office if it is determined that that office will be more accessible to local residents than the county courthouse. 110(2)(g) 110(4), 118(3)

(b) The applicant shall file the copy of the complete application less confidential matters, by the first date of newspaper advertisement of the application. The applicant shall file any subsequent revision of the application with the public office at the same time the revision is submitted to the Division. 110(2)(g) 110(4), 118(3)

(5) Any person having an interest which is or may be adversely affected by a decision of the Division regarding the proposed surface coal mining operation, or the officer or head of any Federal, State, or local government agency or authority, shall have the right to submit written objections to or comments upon the initial or revised application for a permit, permit revision or permit renewal, to the Division within 30 days after the last publication of the above notice. Such objections and comments shall immediately be transmitted to the applicant by the Division and shall be made available to the public, at the same locations as the application. 118(4)

(6) Informal Conference. 118(6)

(a) Within 30 days after the last publication of the notice specified in 2.07.3(2), any person who files objections or comments pursuant to 2.07.3(3)(c), 2.07.3(5), or 3.03.2(3), may request an informal conference. The request shall:

(i) Briefly summarize the issues to be raised by the requestor at the conference; and

(ii) State whether the requestor desires to have the conference conducted in the locality of the proposed mining operations.

(b) Except as provided in 2.07.3(6)(c), if an informal conference is requested, the Division shall hold the informal conference within 60 days after the last publication of the newspaper advertisement. The informal conference shall be conducted according to the following: 118(6)

(i) It shall be held in the locality of the proposed surface coal mining operation or release.

(ii) The date, time and location of the informal conference shall be advertised by the Division in a newspaper of general circulation in the locality of the proposed mine at least two weeks prior to the scheduled conference.

(iii) The Division may arrange with the applicant, upon written request by any person who has submitted objections, comments or a request for an informal conference, access to the proposed permit area for the purpose of gathering information relevant to the conference. The inspection shall be conducted at least 10 days prior to the informal conference and shall be subject to the condition that the visitor shall at all times be accompanied by the applicant, his agent or employee, be under their control, direction and supervision and agree in writing to comply with all applicable State and Federal safety rules and regulations. At no time shall the applicant, his agent or employee use this control to restrict the visitor's access to those portions of the proposed mine plan area necessary for the gathering of information relevant to the conference. The Division shall be in attendance if so requested.

(iv) The requirements of the State Administrative Procedures shall not apply to the conduct of the informal conference. The conference shall be conducted by a representative of the Division, who may accept oral or written statements and any other relevant information from any party to the conference. An electronic or stenographic record shall be made of the conference proceeding, unless waived by all the parties. The record shall be maintained and shall be accessible to the parties of the conference until final release of the permittee's bond under Rule 3.

(c) If all parties requesting the informal conference stipulate agreement before the requested informal conference and withdraw their request, the informal conference need not be held. 118(6)

(d) Informal conferences held in accordance with 2.07.3 may be used by the Board as the public hearing required under 2.07.6(2)(d)(iv) on proposed uses or relocation of public roads.

2.07.4Division and Board Procedures for Review of Permit Applications

(1) Within 60 days of the filing of an application for a permit, permit revision or permit renewal, but no sooner than 30 days after such filing, the Division shall review said application and notify the applicant of preliminary findings as to the substantive adequacy or inadequacy of the application. 118(5)

(2) Proposed Decision by the Division on an application for a permit, permit revision, or permit renewal.

(a) If an informal conference has been held, any party thereto may submit additional information or comments to the Division for a period of 20 days following the conference. The Division shall issue a proposed decision, granting or denying the permit or permit revision in whole or in part, no earlier than 20 days and no later than 60 days after the informal conference. The Division may, for good cause shown, extend the time for the proposed decision up to an additional 60 days if the application is unusually complex or controversial or if significant snow cover prevents adequate on- site inspection.

(b) If there has been no informal conference, the Division shall issue a proposed decision, granting or denying the permit or permit revision in whole or in part, within 120 days of the filing of the application. The Division may, for good cause shown, extend the time for the proposed decision up to an additional 60 days if the application is unusually complex or controversial or if significant snow cover prevents adequate on site inspection. 119(2)

(c) The proposed decision of the Division shall be in writing, and a copy thereof shall be furnished to the applicant, all persons who have objected to or submitted comments on the application, and the Director of OSM. If the proposed decision is to deny the application in whole or in part, the Division shall set forth specific reasons for the proposed decision. If the proposed decision is to grant the application in whole or in part with modifications or stipulations, the modifications or stipulations and reason for the decisions shall accompany the notice of proposed decision. A copy of an approved permit shall be transmitted to the Director of OSM. 119(3)

(d) The Division shall 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 issuance of the proposed decision. 119(4)

(e) The applicant may file the required performance bond anytime within three calendar years of a proposed or final decision granting a permit. However, such performance bond must be filed and approved prior to the issuance of the permit. For applications approved on or after the effective date of this Rule, the Division will review the terms of the original permit approval if the performance bond is not submitted within three calendar years of the final approval. At that time, The Division may reaffirm the approval or request updated and/or additional information.

(i) Updated or revised information will be subject to the notification and review requirements of Rule 2.07.

(ii) If the applicant does not respond to the Division's request within 90 days, the Division will reissue a proposed decision to deny the application. Notice of the Division's proposed decision to deny the permit will be provided as set forth in Rule 2.07.4, and any objections to the decision shall be submitted as set forth in Rule 2.07 .4(3).

(f) Within ten days after the granting of a permit, including the filing of the performance bond which complies with Rule 3, the Division shall notify the local government officials in the local political subdivision in which the area of land to be affected is located, that a permit has been issued and shall describe the location of all the lands within the permit area.

(3) Formal hearing by the Board.

(a) Any person with an interest which may be adversely affected by the proposed decision may request a formal hearing before the Board on the proposed decision. Such request must be made within 30 days of the first publication of the proposed decision of the Division, be in writing, and state with reasonable specificity the reasons for the request and the objections to the proposed decision.

(b) If a formal hearing is requested, the Board shall hold such hearing in an appropriate location no later than 30 days after said request and shall notify the applicant, any person requesting said hearing, and any interested parties to the specific hearing of the date, time and location of said hearing. The Board shall also publish the notice of the proposed hearing in a newspaper of general circulation in the locality of the hearing. The hearing shall be conducted pursuant to Section 24-4-105, C.R.S., and shall be adjudicatory in nature. No person who presided at an informal conference shall either preside at the hearing or participate in the decision thereon in any administrative appeal therefrom. The Board may render its decision at the close of the hearing, and must, in any event, render a decision within 30 days of the hearing. The Board shall issue and furnish the applicant and all persons who participated in the hearing with a copy of the written decision, reversing, affirming or modifying the proposed decision of the Division, and stating the reasons therefore. The decision of the Board shall be implemented by the Division within five days after the written decision of the Board. If the Board's decision approves the granting of the permit, the Division shall issue the permit upon filing and approval of the performance bond pursuant to 2.07 .4(2)(e). 113(1), 119(5)

(c) If no formal hearing is requested, the Division shall issue and implement the proposed decision as final within five days after the close of the 30- day period provided for the filing of a request for a formal hearing. However, no permit shall be issued until the applicant has filed a performance bond with the Division and the Division has approved it. 113(1), 119(6)

(d) When a formal hearing is requested, the Board may grant such temporary relief as it deems appropriate pending final determination of the proceedings if:

(i) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief; 119(7)(a)

(ii) The person requesting such relief shows that there is substantial likelihood that he will prevail on the merits in the final determination of the proceeding; 119(7)(b)

(iii) Such relief shall not adversely affect the public health or safety or cause significant environmental harm to land, air or water resources; and 119(7)(c)

(iv) The relief sought is not the issuance of a permit where a permit has been denied, in whole or in part by the Division, except that continuation under an existing permit may be allowed where the operation has a valid permit issued under section 114 of the Act.

(e) For the purpose of the formal hearing, the Board may administer oaths, subpoena witnesses or written or printed materials, compel attendance of the witnesses or production of the materials, compel discovery and take evidence including, but not limited to, site inspections of the land to be affected and other surface coal mining operations carried on by the applicant in the general vicinity of the proposed operation. A verbatim record of each formal hearing shall be made, and a transcript shall be made available on request to any party or by order of the Board. 119(8)

(f) Ex parte contacts between representatives of the parties appearing before the Board and the Board shall be prohibited.

(g) Judicial appeal. If any applicant or any person with an interest which is or may be adversely affected who has participated in the administrative proceedings as an objector is aggrieved by the decision of the Board or if the Division or Board fails to act within the time limits specified in the Act, such applicant or person shall have the right to appeal in accordance with Section 34-33-128, C.R.S.

(h) Notwithstanding any of the foregoing provisions of Rule 2.07, no time limit under the Act or Rule 2.07 requiring the Board or Division to act shall be considered expired from the time the Board or Division initiates a proceeding under Rule 2.07.6 until the final decision of the hearing body.

2.07.5Public Availability of Information in Permit Applications on File with the Division.

(1) Information contained in applications for permits, revisions, renewals, and transfers, assignments or sales of permit rights on file with the Division shall be open, upon written request, for public inspection and copying at a reasonable cost, at the expense of the requester during normal business hours. 102

(a) Information pertaining to coal seams, test borings, core samplings, or soil samples in permit applications shall be made available for inspection and copying to any person with an interest which is or may be adversely affected; and110(7), 111(1)(1)

(b) Information in permit applications which pertains to the quantity of the coal or stripping ratios, or the analysis of the chemical and physical properties of coal to be mined (excepting information which the Division reasonably believes to concern a mineral or elemental content which is potentially toxic in the environment) and information on the nature and location of archeological resources on public and Indian land (as required under the Archeological Resources Protection Act of 1971, PUB. L. 96-95, 93 State. 721, 16 U.S.C. 470) shall be kept confidential and not made a matter of public record; and

(c) Information in the reclamation plan portions of the application, which is required to be filed with the Division under Section 34-33-111(2), C.R.S. and which is not on public file pursuant to State law, shall be held in confidence by the Board and the Division provided that such information is clearly identified as being confidential or a specific written request is received from the applicant. 111(2)

(2)

(a) Information required by 2.07.5(1)(b) and (c) to be kept confidential by the Division shall be submitted by the applicant in a binder or folder which is clearly identified as containing the confidential information.

(b) The Division shall, upon receipt of the confidential information, take appropriate measures to assure its confidentiality.

(c) Information requested to be held as confidential under 2.07.5(2) shall not be made publicly available until after notice and opportunity to be heard is afforded persons seeking disclosure and those persons opposing disclosure of information and such information is determined by the Board not to be confidential, proprietary information. Information for which disclosure is sought shall not be made available to those persons seeking disclosure prior to or during such opportunity to be heard. Such information shall not be made available until a final decision is made by the Board allowing such disclosure.

2.07.6Criteria for Review of Permit Applications for Permit Approval or Denial

(1) Review of permit applications.

(a)

(i) The Division shall review the complete application and written comments, written objections submitted, and records of any informal conference held under Rule 2.07.3(6).

(ii) The Division shall determine the adequacy of the fish and wildlife plan submitted pursuant to 2.05.6(2), in consultation with State and Federal fish and wildlife management and conservation agencies having responsibilities for the management and protection of fish and wildlife or their habitats which may be affected or impacted by the proposed surface coal mining and reclamation operations. 114(2)(a)

(b) Based on the reviews required under Rules 2.03.4 and 2.03.5, the Division will determine whether the applicant is eligible for a permit under Rules 2.07.6(2)(g), and 2.07.6(2)(o) AND 34-33-114(3). Except as provided in 2.07.6(1)(g), the Division shall not issue the permit if any surface coal mining and reclamation operation that is:

(i) directly owned or controlled by the applicant has an unabated or uncorrected violation; or

(ii) indirectly controlled by the applicant or operator has an unabated or uncorrected violation and that control was established or the violation was cited after November 2, 1988.

(c) The Division will not issue a permit if the applicant or operator is permanently ineligible to receive a permit under Rule 2.07.9(3).

(d) If the applicant is deemed ineligible for a permit under this Rule, the Division will send written notification of its decision. The notice will tell why the applicant is ineligible and include notice of the applicant's appeal rights under Rule 2.07.4(3) and 34-33-128 C.R.S.

(e) Before any final determination of approval or denial of the permit application by the Division or the Board, the applicant, or any person who owns or controls the applicant, or the operator specified in the application whom the Division finds controls or has controlled mining operations with a demonstrated pattern of willful violation of the Act of such nature, duration, and with such resulting irreparable damage to the environment that indicates an intent not to comply with the provisions of the Act, shall be afforded an opportunity for an adjudicatory hearing on the determination as provided for by 2.07.4(3)(b)-2.07.4(3)(g).

(f) After final approval of a permit under Rule 2.07.6(2), the Division will not issue the permit until the information update and certification requirement of Rule 2.03.5 is received. Upon fulfillment of that requirement, the Division will again request a compliance history report from AVS to determine if there are any unabated or uncorrected violations which affect permit eligibility under paragraphs (b) and (c) of this Rule. The Division will request this report no more than five business days before permit issuance under Rule 2.07.4.

(g)

(i) This Rule applies if an applicant owns or controls a surface coal mining and reclamation operation with:

(A) A notice of violation issued pursuant to Rule 5.03.2 or under a Federal or State program for which the abatement period has not yet expired; or

(B) A violation that is unabated or uncorrected beyond the abatement or correction period.

(ii) The Division will find the applicant eligible for a provisionally issued permit under this Rule if the applicant demonstrates that one or more of the following circumstances exists with respect to all violations listed in paragraph (g)(i)(A) of this Rule:

(A) For violations meeting the criteria of paragraph (g)(i)(A) of this section, the applicant certifies that the violation is being abated to the satisfaction of the regulatory authority with jurisdiction over the violation, and the Division has no evidence to the contrary.

(B) As applicable, the applicant, the operator, and operations that the applicant or operator own or control are in compliance with the terms of any abatement plan (or, for delinquent fees or penalties, a payment schedule) approved by the agency with jurisdiction over the violation.

(C) The applicant is pursuing a good faith:

(I) Challenge to all pertinent ownership or control listings or findings under Rules 2.11.1through 2.11.4; or

(II) Administrative or judicial appeal of all pertinent ownership or control listings or findings, unless there is an initial judicial decision affirming the listing or finding and that decision remains in force.

(D) The violation is the subject of a good faith administrative or judicial appeal contesting the validity of the violation, unless there is an initial judicial decision affirming the violation and that decision remains in force.

(iii) The Division will consider a provisionally issued permit to be improvidently issued, and must immediately initiate procedures under Rules 2.07.8 and 2.07.8(3) to suspend or rescind that permit, if:

(A) Violations included in paragraph (g)(i)(A) of this rule are not abated within the specified abatement period;

(B) The applicant, operator, or operations that the applicant or operator own or control do not comply with the terms of an abatement plan or payment schedule mentioned in paragraph (g)(ii)(B) of this rule;

(C) In the absence of a request for judicial review, the disposition of a challenge and any subsequent administrative review referenced in paragraph (g)(ii)(C) or (D) of this section affirms the validity of the violation or the ownership or control listing or finding; or

(D) The initial judicial review decision referenced in paragraph (g)(ii)(C)(I) or (g)(ii)(D) of this rule affirms the validity of the violation or the ownership or control listing or finding.

(2) Criteria for permit approval or denial.

No permit or permit revision application shall be approved, unless the application affirmatively demonstrates and the Division or Board finds, in writing, on the basis of information set forth in the application or from information otherwise available, which is documented in the approval and made available to the applicant, that:

(a) The permit application is accurate and complete and that all requirements of the Act and these Rules have been complied with. 114(2)(a)

(b) The applicant has demonstrated that surface coal mining and reclamation operations, as required by the Act and these Rules can be feasibly accomplished under the mining and reclamation operations plan contained in the application. 114(2)(b)

(c) The assessment of the probable cumulative impacts of all anticipated coal mining in the general and cumulative impact area on the hydrologic balance, has been made by the Division, and the operations proposed in the application have been designed to prevent material damage to the hydrologic balance outside the proposed permit area. 114(2)(c)

(d) The affected area is, subject to valid rights existing as determined under Rule 1.04, and with the further exception of those lands within the approved permit boundaries of surface coal mining operations which permit boundaries were in existence at the time the land came under the protection of this rule OR 30 U.S.C. 1272(e).:

(i) reserved.

(iii) Not on any lands subject to the following prohibitions or limitations:

(A) On any lands within the boundaries of the National Park System; the National Wildlife Refuge System; the National System of Trails; the National Wilderness Preservation System; the Wild and Scenic Rivers System, including study rivers designated under Section 5(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1276(a)) or study rivers or study river corridors established in any guidelines issued under that act; or National Recreation Areas designated by Act of Congress;

(B) Lands within 300 feet measured horizontally or any public building, school, church, community or institutional building or public park; or 114(2)(g)(IV)

(C) Within 100 feet measured horizontally of a cemetery; or 114(2)(g)(IV)

(D) On any Federal lands within the boundaries of any national forest; except that surface coal mining operations may be permitted on such lands if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations, and:

(I) Surface operations and impacts are incident to an underground coal mine; or

(II) Where the Secretary of the United States Department of Agriculture determines, with respect to lands in national forests which do not have significant forest cover, that surface mining is in compliance with the "Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. 528-531" as amended, the Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. 181 et seq.; and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq. and the provisions of the Act;

(III) If a person intends to rely upon the exception provided in paragraph D, above, approval from the Secretary of the Interior must be obtained. Procedures for obtaining Secretarial approval are set forth in 30 CFR § 761.13. The Division may not issue the permit or approve a boundary revision before the Secretary makes the findings required by 30 CFR § 761.11(b).

(E) If the Division or Board is unable to determine whether the affected area of the proposed operation is within the boundaries of any lands in (A) or (D) or closer than the limits provided in (B) or (C) of this subsection, the Division shall transmit by certified mail, return receipt requested, the relevant portions of the permit application to any appropriate Federal, State, or local government agency with a request that it advise the Division or Board about the appropriate boundaries and respond within 30 days of receipt of the request. The National Park Service, the U.S. Fish and Wildlife Service, or the U.S. Forest Service shall be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and shall have 30 days from receipt of the notification in which to respond. The Board or Division shall, upon request of the appropriate agency, grant an additional 30 days to respond. If no response is received within the period granted, the Division or Board shall presume that the affected area of the proposed operation is not within the boundaries of lands identified in (A), (B), (C) or (D). If the agency responds that there are lands within such boundaries, the Division or Board shall not grant a permit with respect to those lands until the dispute is resolved;

(iv) Not within 100 feet, measured horizontally, of the outside right-of-way line of any public road except where mine access roads or haul roads join such right-of-way line or where the applicant proposes to relocate or close any public road. The Division or Board shall only allow such relocation or closure or affected area within 100 feet, measured horizontally, of the public road if the Division, or the appropriate public road authority, pursuant to being designated as the responsible agency by the Division, allows the public road to be relocated, closed, or the affected area to be within 100 feet, measured horizontally, of such road, after public notice and an opportunity for a public hearing in accordance with 2.07.6(2)(d)(iv)(A) and (B).

(A) The Division or designated responsible agency shall provide an opportunity for a public hearing in the locality of the proposed mining operation for the purpose of determining whether the interests of the public and affected landowners will be protected.

(B) If a public hearing is requested, the Division or designated responsible agency shall conduct the requested hearing and shall provide notice in a newspaper of general circulation in the affected locale at least two weeks before the hearing.

(C) If a public hearing is held, the Division or designated responsible agency shall make a written finding within 30 days of the close of the hearing as to whether the interests of the public and the affected landowners will be protected.

(D) Whether a public hearing is held or not, no affected area shall be allowed within 100 feet, measured horizontally, of the outside right-of-way line of a public road, nor may a public road be relocated or closed, unless the applicant has obtained all necessary approvals of the authority with jurisdiction over the public road, and the Division or the public road authority have made a written finding that the interests of the public and the affected landowners will be protected.

(v) Not within 300 feet measured horizontally from any occupied residential dwelling, unless the owner thereof has provided a written waiver consenting to surface coal mining operations closer than 300 feet which states that the owner and signatory had the legal right to deny mining and knowingly waived that right. Valid waivers existing as of August 3, 1977 shall be considered binding for purposes of Rule 2.07.6 and binding subsequent purchasers of such valid waivers by prior owners. The waiver must be separate from a lease or deed unless the lease or deed contains an explicit waiver. A subsequent purchaser will be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to state laws or if surface coal mining operations have entered the 300-foot zone before the date of purchase.

(vi) Not within any lands where the proposed operations would adversely affect any publicly owned park or any place listed on or those places eligible for listing, as determined by the SHPO, on the National Register of Historic Places, unless approved jointly by the Board and the Federal, State, or local agency with jurisdiction over the park or place. Where the proposed surface coal mining operation may adversely affect any publicly owned park or place listed on or those places eligible for listing, as determined by the SHPO, on the National Register of Historic Places, the Division or Board shall transmit to the Federal, State, or local agencies with jurisdiction over the park or historic site a copy of the complete application containing the following:

(A) A request for the agency's approval or disapproval of the operations;

(B) A notice to the appropriate agency that it must respond within 30 days from the receipt of the request.

(e) The proposed permit area is

(i) Not included within an area designated unsuitable for surface coal mining operations in an administrative proceeding begun under Rule 7 or 30 CFR 769.

(ii) Not within an area under study for designation as unsuitable for surface coal mining operations in an administrative proceeding begun under Rule 7 or 30 CFR 769 unless the applicant demonstrates that, before January 4, 1977, he or she has made substantial financial and legal commitments in the relation to the operation for which he or she is applying for a permit.

(f) For operations involving the surface mining of coal where the private mineral estate to be mined has been severed from the private surface estate, the applicant has submitted to the Division the documentation required under Rule 2.03.6(2).

(g) The applicant is eligible to receive a permit, based on the reviews under Rules 2.03.4(11) and (12), 2.03.5(2), 2.07.4(2)(b), and 2.07.6(1).

(h) The applicant or the operator, if other than the applicant, and all persons who own or control the applicant, do not control and have not controlled mining operations with a demonstrated pattern of willful violations of the Act of such nature, duration, and with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of the Act. 114(3)

(i) Surface coal mining and reclamation operations to be performed under the permit will not be inconsistent with other such operations anticipated to be performed in areas adjacent to the proposed permit area.

(j) The applicant will submit the performance bond required under the Rule 3, prior to the issuance of permit.

(k) The applicant has, with respect to both prime farmland and alluvial valley floors, obtained either a negative determination or satisfied the requirements of Rules 2.06.6 and 2.06.8, excluding undeveloped range lands which are not significant to farming on said alluvial valley floors and those lands upon which the Board finds that the farming which will be interrupted, discontinued, or precluded is of such small acreage as to be of negligible impact on said land's agricultural production.

(l) The proposed post mining land use of the permit area has been approved by the Division in accordance with the requirements of Rule 4.16.

(m) The Division has made all specific approvals required under Rule 4.

(n) The Division has found that the activities would not affect the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitats as determined under the Endangered Species Act of 1973 (16 USC Sec. 1531 et seq.) or the Nongame, Endangered or Threatened Species Conservation Act (Section 33-2-101et seq., C.R.S.).

(o) The applicant has submitted proof that all reclamation fees required by 30 CFR Chapter VII, Subchapter R, have been paid for all coal mining operations.

(p) The applicant has satisfied the applicable requirements of Rules 4.23 through 4.29 (requirements for special categories of mining).

(q) The applicant has, if applicable, satisfied the requirements for approval of a long-term, intensive agricultural post mining land use, in accordance with the requirements of Rules 4.15.1(2)(c), 4.15.7(3)(b)(i), 4.15.8(1)(a), 4.15.9, and 4.25.5(2).

2.07.7Conditions of Permits.

Each permit issued by the Division or Board shall ensure and contain specific conditions requiring that the:

(1) The permittee shall take all possible steps to minimize any adverse impact to the environment or public health and safety resulting from noncompliance with any term or condition of the permit, including, but not limited to:

(a) Any accelerated or additional monitoring necessary to determine the nature and extent of noncompliance and the results of the noncompliance;

(b) Immediate implementation of measures necessary to comply; and

(c) Warning as soon as possible after learning of such noncompliance, any person whose health and safety is in imminent danger due to the noncompliance.

(2) The permittee shall dispose of solids, sludge, filter backwash, or pollutants removed in the course of treatment or control of waters or emissions to the air in the manner required by Rule 4 and which prevents violation of any other applicable State or Federal law.

(3) The permittee shall conduct its operations:

(a) In accordance with any measures specified in the permit as necessary to prevent significant environmental harm to the health or safety of the public; and,

(b) Utilizing any methods specified in the permit by the Division in approving alternative methods of compliance with the Act and in accordance with the provisions of 2.07.6(2)(m) and Rule 4.

(4) The operator shall pay all reclamation fees required by 30 CFR, Chapter VII, Subchapter R(1989), for coal produced under the permit for sale, transfer or use, in the manner required by that Subchapter.

(5) Within thirty days after a cessation order is issued under 5.03.2(1), for operations conducted under the permit, except where a stay of the cessation order is granted and remains in effect, the permittee shall either submit to the Division the following information, current to the date the cessation order was issued, or notify the Division in writing that there has been no change since the immediately preceding submittal of such information:

(a) Any new information needed to correct or update the information previously submitted to the Division by the permittee under 2.03.4(3); or

(b) If not previously submitted, the information required from a permit applicant by 2.03.4(3).

(6) The permittee shall conduct surface coal mining and reclamation operations only on those lands that are specifically designated as the permit area on the maps and in the legal description submitted with the application. Areas disturbed and affected by surface coal mining and reclamation operations shall be contained within the boundaries authorized on permit application maps for the term of the permit and shall be limited to those areas subject to the performance bond in effect pursuant to these rules.

(7) The permittee shall conduct all surface coal mining and reclamation operations only as described in the approved application, except as otherwise directed by the Division in the permit.

(8) The permittee shall comply with the terms and conditions of the permit, all applicable performance standards of the Act, and the requirements of these Rules.

(9) Continuous, uninterrupted bond coverage shall be in effect at all times, and an adequate bond amount shall be maintained pursuant to the requirements of Rule 3.02.2 . Operating without a bond is a violation of a condition upon which the permit is issued.

2.07.8 Improvidently issued permits.

(1) Initial review and finding requirements for improvidently issued permits.

(a) If the Division has reason to believe that a permit was improvidently issued, the Division must review the circumstances under which the permit was issued. The Division will make a preliminary finding that the permit was improvidently issued if, under the permit eligibility criteria of the applicable regulations implementing section 114(3) of the Act in effect at the time of permit issuance, the permit should not have been issued because the permittee or operator owned or controlled a surface coal mining and reclamation operation with an unabated or uncorrected violation.

(b) The Division will make a finding under paragraph (a) of this rule only if the permittee or operator:

(i) Continue to own or control the operation with the unabated or uncorrected violation;

(ii) The violation remains unabated or uncorrected; and

(iii) The violation would cause the permittee to be ineligible under the permit eligibility criteria in the current Rules and Regulations.

(c) When the division makes a preliminary finding under paragraph (a) of this rule, the Division must serve the permittee with a written notice of the preliminary finding which must be based on evidence sufficient to establish a prima facie case that the permit was improvidently issued.

(d) Within 30 days of receiving a notice under paragraph (c) of this rule, the permittee may challenge the preliminary finding by providing the Division with evidence as to why the permit was not improvidently issued under the criteria in paragraphs (a) and (b) of this rule.

(e) The provisions of Rules 2.11.1 through 2.11.3 apply when a challenge under paragraph (d) of this rule concerns a preliminary finding under paragraphs (a) and (b)(i) of this rule that the permittee currently owns or controls, or owned or controlled, a surface coal mining operation.

(2) Notice requirements for improvidently issued permits.

(a) The Division must serve the permittee with a written notice of proposed suspension or rescission, together with a statement of the reasons for the proposed suspension of rescission, if:

(i) After considering any evidence submitted under Rule 2.07.8 the Division finds that a permit was improvidently issued under the criteria in paragraphs (a) and (b)(1) of Rule 2.07.8(1); or

(ii) The permit was provisionally issued under Rule 2.07.6 and one or more of the conditions in Rule 2.07.6(1)(g)(iii)(A) through (D) exists.

(b) The Division will provide 60 days notice if a decision is proposed to suspend a permit.

(c) The Division will provide 120 days notice if a decision is proposed to rescind a permit.

(d) If the permittee wishes to appeal the notice, he/she must exhaust administrative remedies under Rule 2.07.4(3).

(e) After the Division serves a notice of proposed suspension or rescission under this Rule, action will be taken under Rule 2.07.8(3).

(f) The regulations for service at Rule 5.03.4 will govern service under this section.

(g) The times specified in paragraphs (b) and (c) of this rule will apply unless the permittee obtains temporary relief from the Board pursuant to Rule 2.07.4(3)(d).

(3) Suspension or rescission requirements for improvidently issued permits.

(a) Except as provided in paragraph (b) of this Rule, the Division must suspend or rescind a permit upon expiration of the time specified in Rule 2.07.8 of these Rules unless the permittee submits evidence and the Division finds that:

(i) The violation has been abated or corrected to the satisfaction of the agency with jurisdiction over the violation;

(ii) The permittee or operator no longer own or control the relevant operation;

(iii) The Division's finding for suspension or rescission was in error;

(iv) The violation is the subject of a good faith administrative or judicial appeal (unless there is an initial judicial decision affirming the violation, and that decision remains in force);

(v) The violation is the subject of an abatement plan or payment schedule that is being met to the satisfaction of the agency with jurisdiction over the violation; or

(vi) The permittee is pursuing a good faith challenge or administrative or judicial appeal of the relevant ownership or control listing or finding (unless there is an initial judicial decision affirming the listing or finding, and that decision remains in force).

(b) If the permittee has requested administrative or judicial review of a notice of proposed suspension or rescission under Rule 2.07.8, the Division will not suspend or rescind a permit unless and until the Board or court affirms the Division's finding that the permit was improvidently issued.

(c) When the Division suspends or rescinds a permit under this section, the Division must:

(i) Issue the permittee a written notice requiring the permittee to cease all surface coal mining operations under the permit; and

(ii) Post the notice at the Division office.

(d) If the Division suspends or rescinds a permit under this rule, the permittee may request administrative review of the notice under the procedures at Rule 2.07.4.

2.07.9Post-permit issuance requirements for the Division and other actions based on ownership, control, and violation information.

(1) For the purposes of future permit eligibility determinations and enforcement actions, the Division must enter into AVS:

(a) Permit records within 30 days of a permit being issued or subsequently changed.

(b) Unabated or uncorrected violations within 30 days of the expiration of the abatement or correction period for the violation.

(c) Changes to information initially required to be provided by the applicant under Rule 2.03.4 within 30 days of receiving notice of a change.

(d) Changes in violation status within 30 days of abatement, correction, or termination of a violation, or a decision from an administrative or judicial tribunal.

(2) If, at any time, the Division discovers that any person owns or controls an operation with an unabated or uncorrected violation, the Division will determine whether enforcement action is appropriate under Rule 5.03.2, 5.05, or 5.06. The Division must enter the results of each enforcement action, including administrative and judicial decisions, into AVS.

(3) The Division must serve a preliminary finding of permanent permit ineligibility under section 114(3) of the Act on an applicant or operator, if the criteria in paragraphs (3)(a) and (3)(b) are met. In making a finding under this paragraph, the Division will only consider control relationships and violations which would make, or would have made, the applicant or operator ineligible for a permit under Rules 2.07.6 and Rule 2.07.6 . The Division must make a preliminary finding of permanent permit ineligibility if it finds that:

(a) The applicant or operator control or have controlled surface coal mining and reclamation operations with a demonstrated pattern of willful violations under section 114(3) of the Act; and

(b) The violations are of such nature and duration with such resulting irreparable damage to the environment as to indicate the applicant or operator's intent not to comply with the Act, its implementing regulations, the regulatory program, or his/her permit.

(4) The applicant or operator may request a hearing on a preliminary finding of permanent permit ineligibility under Rule 2.07.4.

(5) Entry into AVS.

(a) If no request for a hearing is made, and the time for seeking a hearing has expired, the Division will enter its finding into AVS.

(b) If a hearing is requested, the Division will enter its finding into AVS only if that finding is upheld on administrative appeal.

(6) At any time, the Division may identify any person who owns or controls a surface coal mining and reclamation operation or any relevant portion or aspect thereof. If the Division identifies such a person, the Division must issue a written preliminary finding to the person and the applicant or permittee describing the nature and extent of ownership or control. The Division's written preliminary finding must be based on evidence sufficient to establish a prima facie case of ownership or control.

(7) After the Division issues a written preliminary finding under paragraph (6) of this rule, the Division will allow the person subject to the preliminary finding 30 days in which to submit any information tending to demonstrate his/her lack of ownership or control. If after reviewing any information submitted, the Division is persuaded that he/she is not an owner or controller, the Division will serve the person a written notice to that effect. If, after reviewing any information the person submits, the Division still finds that he/she is an owner or controller, or if the person does not submit any information within the 30-day period, the Division will issue a written finding and enter that finding into AVS.

(8) If the Division identifies a person as an owner or controller under paragraph (7) of this section, he/she may challenge the finding using the provisions of Rules 2.11.1, 2.11.2, and 2.11.3.

2.07.10 Post-permit issuance information requirements for permittees.

Within 60 days of any addition, departure, or change in position of any person identified in Rule 2.03.4, The permittee must provide:

(1) The information required under Rule 2.03.4(4); and

(2) The date of any departure.

2.08PERMIT REVIEW, REVISIONS AND RENEWALS AND TRANSFER, SALE AND ASSIGNMENT

2.08.1Scope. 2.08 establishes the requirements for: 109(5) 115, 118

(1) Revisions to and affirmative periodic review of permits previously issued by the Division,

(2) Renewal of permits previously issued by the Division.

(3) Transfer, sale, or assignment of rights granted under permits previously issued by the Division.

2.08.2Objectives.

The objectives of 2.08 are to:

(1) Provide procedures for the Division to review, revise, and renew permits; and

(2) Provide procedures for transfer, sale, or assignment of rights granted in permits.

2.08.3Division Review of Outstanding Permits.

(1) The Division shall review each permit issued and outstanding under these rules during the term of the permit. This review shall occur not later than the middle of the permit term and as required by 2.06.2 through 2.06.7, pertaining to experimental practices, mountaintop removal, steep slope, and combined surface and underground mining. 115(3)

(2) For permits of longer than 5- year terms, a review of the permit shall be no less than the permit midterm or every 5 years, whichever is more frequent.

(3) After this review, the Division may, for good cause shown, by order, require reasonable revision or modification of the permit provisions to ensure compliance with the Act and these Rules.

(4) Copies of the decision of the Division shall be sent to the permittee.

(5) Any order of the Division requiring revision or modification of permits shall be based upon written findings and shall be subject to administrative and judicial review.

2.08.4Revisions to a Permit.

(1) General requirements. A permit revision shall be obtained:

(a) For significant alterations in the surface coal mining or reclamation operations described in the original application and approved under the original permit; 103(19), 115, 116

(b) When required by an order issued under 2.08.3(3);

(c) For an alternate post mining land use if the permit is subject to the provisions of 2.05.5(2)(d); or

(d) For any extensions to the area to be covered by a permit, except for incidental boundary revisions. 115(1)(c)

(2) A technical revision shall be obtained: 115(1)(c)

(a) For minor permit modifications which meet the criteria of 1.04(136);

(b) When required by an order issued under 2.08.3(3); or

(c) For incidental permit boundary revisions.

(3) A minor revision shall be obtained:

(a) For minor permit modifications which meet the criteria of 1.04(73); or

(b) When requested by an order issued under 2.08.3(3).

(4) The operator may not implement any permit revision, technical revision, or minor revision before obtaining final approval. 115, 116

(5) Application requirements. An application for all types of revisions to a permit shall contain:

(a) An identification of the permit by permit number or other appropriate reference which is the subject of the revision;

(b) A specific description of the requested change in the terms of the permit;

(c) A specific description of any changes in the mining and reclamation operation which may have an effect on performance bond requirements of Rule 3; and

(d) Such other information as may be necessary for the Division to determine if the proposed revision will comply with the Act and these Rules. The Board or Division may reasonably request additional information to evaluate the proposed revision.

(6) Review and Notification Requirements for Revisions to a Permit.

(a) Permit revision. An application for a permit revision shall be subject to the requirements of Rule 2.07.

(b) Technical Revision.

(i) An applicant for a technical revision shall place an advertisement in a local newspaper pursuant to the requirements of Rule 2.07.3, except that the publication need only be once and no reference to an informal conference shall be made. The applicant shall make a copy of his or her complete application for the public to inspect and copy. This shall be done by filing a copy of the application with the recorder at the courthouse of the county closest to the surface coal mining operations, or if approved by the Division, at another equivalent public office, if it is determined that the office will be more accessible to local residents than the county courthouse. The public copy shall be filed at the same time as the advertisement. The Division shall issue written notification of the complete technical revision application to federal and state agencies and various local governmental bodies with jurisdiction over or an interest in the area of the proposed operations.

(ii) Any person having an interest which is or may be adversely affected by a decision of the Division regarding the proposed technical revision, or the officer or head of any Federal, State, or local government agency or authority, shall have the right to submit written objections to or comments upon the initial or revised application for a technical revision, to the Division within 10 days after the publication of the above notice. Such objections and comments shall immediately be transmitted to the applicant by the Division and shall be made available to the public, at the same locations as the application. 116(4)

(iii) Within 60 days after the filing of a complete application for a technical revision, the Division shall issue a proposed decision approving or denying the application in whole or in part. A written copy of such decision shall be promptly provided to the permittee and shall be published once in a newspaper of general circulation in the locality of the surface coal mining operation. The applicant or any person with an interest which is or may be adversely affected may request a hearing by the Board. The request for a hearing must be received in writing by the Division within 10 days after such publication and shall contain a brief and plain statement of facts which indicate the requestor may be adversely affected, and briefly summarize the issues to be raised by the requestor at the hearing. If properly requested under the provisions of this subsection, a hearing shall be held at the next regularly scheduled Board meeting and a final decision shall be made at that hearing and become immediately effective with notice of the decision being mailed to the permittee. If no request for a hearing is received within such 10 day period the proposed decision of the Division shall immediately become final upon the expiration of said period. 116(5)

(c) Minor revision.

(i) Immediately upon receipt of a complete application for a minor revision, the Division shall post a notice of the application in the office of the Division and make a copy of the application available for the public to inspect and copy at a reasonable cost.

(ii) Within 10 days after the filing of a complete application for a minor revision, the Division shall issue a decision approving or denying the application in whole or in part. A written copy of the decision shall be promptly provided to the permittee and shall be posted in the Division office.

(iii) Within 10 days after the notification required by 2.08.4 (6)(c)(ii) above, any person which has an interest which is or may be adversely affected may request a formal hearing on the decision by the Division. Such request shall be in writing and state with reasonable specificity the reasons for the request and objections to the Division. If so requested, the formal hearing shall be conducted in accordance with the requirements of 2.07.4(3).

2.08.5Right of Successive Renewal

(1)

(a) Any valid, existing permit issued pursuant to this regulatory program shall carry with it the right of successive renewal upon expiration of the term of the permit, in accordance with the provisions of 2.08.5. Any permit renewal shall be for an additional term not to exceed the period of the original permit. 109(7)(a),(d)

(b) Permit renewal shall not be available for conducting surface coal mining and reclamation operations on lands beyond the boundaries of the permit area approved under the existing permit. If an application for renewal includes any proposed revisions to the permit, such revisions shall be identified and be subject to the requirements of Rule 2.08.4.

(c) If a complete application for renewal of a permit includes a proposal to extend the mining and reclamation operation beyond the boundaries authorized in the existing permit, the portion of the complete application for renewal of a valid permit which addresses any new land areas shall be subject to the full standards applicable to the new permit applications under the Act and these Rules. 109(7)(c)

(d) If the surface coal mining and reclamation operations authorized under the original permit were not subject to the standards contained in 34-33-114(2)(e)(I)(A) and (B) of the Act and 2.06.8, because the permittee complied with the exception provided in 34-33-114(2)(e)(II) of the Act (for surface coal mining operations located within or adjacent to alluvial valley floors and producing coal in commercial quantities in the year proceeding August 3, 1977, or operations that had obtained permit approval to mine within said alluvial valley floors), the portion of the application for renewal of the permit which addresses any new land areas previously identified in the reclamation plan submitted for the original permit shall not be subject to the standards contained in 34-33-114(2)(e)(I)(A) and (B) of the Act and 2.06.8.

(2) Applications for permit renewals.

(a) Complete applications for renewals of a permit shall be filed with the Division at least 180 days before the expiration of the existing permit. The Division shall mail to the operator notice of the need to renew such permit at least 90 days prior to the final date for the filing of the permit renewal. 109(7)(d)

(b) Renewal applications shall include, at a minimum, the following:

(i) A statement of the name and address of the permittee, the term of the requested renewal, the permit number, and a description of any changes to the matters set forth in the original application for a permit or prior permit renewal;

(ii) A copy of the newspaper notice to be placed in a local newspaper in accordance with the requirements of 2.07.3(2). Proof of publication of the advertisement shall be filed with the Division and made a part of the complete application not later than 4 weeks after the last date of publication; and

(iii) Evidence that a liability insurance policy or adequate self insurance under 2.03.9 will be provided by the applicant for the proposed period of renewal.

(c) Complete applications for renewal shall be subject to the requirements of public notification and participation contained in 2.07.3.

(3) Permit renewals: approval or denial, terms.

(a) The Division shall, upon the basis of a complete application for renewal and completion of all public notice and hearing requirements under 2.07, issue renewal of a permit, unless it is established by a preponderance of the evidence and written findings by the Board that: 109(7)(a)

(i) The terms and conditions of the existing permit are not being satisfactorily met. Renewal may be granted to the holder of the permit on the condition that the holder demonstrates that he is meeting, and will continue to meet, a schedule agreed to by the holder and the Division for correcting any permit violation, consistent with Rule 5;

(ii) The present surface coal mining and reclamation operation is not in compliance with the Act and these Rules;

(iii) The renewal requested substantially jeopardizes the permittee's continuing responsibility on existing permit areas;

(iv) The operator has not provided evidence that the performance bond in effect for said operation will continue in full force and effect for any renewal requested in such application as well as any additional bond the Board or Division might require pursuant to Rule 3; or

(v) Any additional revised or updated information required by the Division has not been provided.

(b) Prior to approval of the application for renewal of a permit, the Division shall provide notice to the Office of Surface Mining, to the surface and mineral owners of record of the affected land, and to the board of county commissioners of the county in which the affected land is located. 109(7)(b)

(c) In determining whether to approve or deny a renewal, the burden shall be on the opponent of the renewal. 109(7)(e)

(d) The Board shall send copies of its decision to the applicant, any person who filed objections or comments to the renewal, the Director, and to any persons who were parties to any informal conference or formal hearing held on the permit renewal.

(e) Any person having an interest which is or may be adversely affected by the decision of the Division shall have the right to administrative and then to judicial review as set forth in 34-33-119 and 34-33-128 of the Act. 118, 119, 128

(f) The holder of a valid permit may continue surface mining operations under said permit, subject to Section 34-33-123 of the Act and Rule 5, beyond the expiration date until a final administrative decision is rendered if a renewal application is received by the Division at least 180 days prior to the expiration date of the permit. 109(7)(f)

2.08.6Transfer, Assignment or Sale of Permit Rights

(1) No transfer, assignment, or sale of the rights granted under any permit issued pursuant to the Act shall be made without the prior written approval of the Division pursuant to 2.08.6(4). 115(2)

(2) The Division may not approve any transfer or assignment of any permit unless the potential transferee or assignee: 115(1)(b)

(a) Obtains the performance bond coverage of the original permittee by:

(i) Obtaining transfer of the original bond; or

(ii) Obtaining a written agreement with the original permittee and all subsequent successors in interest (if any) that the bond posted by the original permittee and all successors shall continue in force on all areas affected by the original permittee and all successors, and supplementing such previous bonding with such additional bond as may be required by the Division. If such an agreement is reached, the Division may authorize for each previous successor and the original permittee and release of any remaining amount of bond in excess of that required by the agreement; or

(iii) Providing sufficient bond to cover the remaining bond liability under the original permit, from inception to completion of reclamation operations; or

(iv) Such other methods as would provide that reclamation of all areas affected by the original permittee is assured under bonding coverage at least equal to that of the original permittee; and

(b) Provides the Division with an application on a form approved by the Board for approval of such proposed transfer, assignment, or sale, including;

(i) The name and address of the existing permittee;

(ii) The name and address of the person proposing to succeed by such transfer, assignment, or sale and the name and address of that person's resident agent;

(iii) For surface or underground mining activities, the same information as is required by 2.03.4, 2.03.5, 2.03.6, 2.03.7(3), 2.03.9, and 2.03.10, for applications for new permits.

(3)

(a) The person applying for approval of such transfer, assignment or sale of rights granted by a permit shall advertise the filing of the application in a newspaper of general circulation in the locality of the operations involved, indicating the name and address of the applicant, the original permittee, and number and particular geographic location of the permit, and the address of the Division to which written comments may be sent. 115(1)(b) 115(3)

(b) Any person whose interests are or may be adversely affected, including, but not limited to, the head of any local, State, or Federal government agency, may submit written comments on the application for approval to the Division, within 15 days of the newspaper notice.

(4) The Division may, upon the basis of the applicant's compliance with the requirements of 2.08.6(2) and 2.08.6(3); grant written approval for the transfer, sale, or assignment or rights under a permit, if it first finds, in writing, that:

(a) The person seeking approval is eligible to receive a permit in accordance with Rule 2.07.6(1)(b), (e) and (2)(g);

(b) The applicant has submitted a performance bond at least equivalent to the bond of the original permittee; and

(c) The applicant will conduct the operations involved in full compliance with the terms and conditions of the original permit, and in accordance with the requirements of the Act and these rules.

(5) Any successor in interest seeking to change the conditions of mining or reclamation operations, or any of the terms or conditions of the original permit shall; 115(2), 108

(a) Make application for a new permit, if the change involves conducting operations outside the original permit area; or 115(1)(c)

(b) Make application for a revised permit, if the change does not involve conducting operations outside the original permit area.

(6) The Division shall notify the applicant, the permittee, any commenter on the application, and the Director of its proposed decision to approve or deny the application, pursuant to 2.08.6(4) above. Within 30 days after such notification, any person with an interest which is or may be adversely affected may request a formal hearing on the decision by the Division. Such request shall be in writing and state with reasonable specificity the reasons for the request and objections to the decision. If so requested, the formal hearing shall be conducted in accordance with the requirements of 2.07.4(3). If no formal hearing is requested, the Division shall issue and implement the proposed decision as final within five days after the close of the 30-day period provided for the filing of a request for a formal hearing. However, no permit shall be transferred until the applicant has filed a performance bond with the Division and the Division has approved it.

(7) Any application for a new permit required for a person succeeding by transfer, sale or assignment of rights granted under a permit shall be filed with the Division not later than thirty days after that succession is approved by the Division.

(8) The successor shall immediately notify the Division of the consummation of the transfer, assignment, or sale of permit rights.

2.09SMALL OPERATOR ASSISTANCE PROGRAM

2.09.1Assistance Provided.

(1) To the extent possible with funding or services appropriated or otherwise provided for the specific purpose of 2.09, the Division shall for qualified small operators who request assistance; 112

(a) Select and pay a qualified laboratory to determine for the operator the probable hydrologic consequences of the mining and reclamation operations both on and off the proposed permit area required by 2.09.5, and prepare a statement of test borings or core samplings required by 2.09.5; and 112(1)(a)

(b) Provide additional necessary technical and administrative assistance to the operator in the preparation of permit applications and revisions. 112(1)(b)

2.09.2Eligibility for Assistance.

(1) An applicant is eligible for assistance if he or she: 108, 112(1)

(a) Intends to apply for a permit pursuant to the Act;

(b) Is not restricted in any manner from receiving a permit pursuant to the Act;

(c) Has not organized or reorganized his or her company solely for the purpose of obtaining assistance under this rule; and

(d) Establishes that the probable total production of the applicant for any consecutive twelvemonth period of the permit will not exceed 100,000 tons.

Production from the following operations shall be attributed to the applicant:

(i) All coal produced by operations entirely controlled, by reason of ownership, direction of the management or in any other manner, by the applicant;

(ii) The pro rata share, based upon percentage of beneficial ownership, of coal produced by operations in which the applicant owns more than a 5 percent interest;

(iii) The pro rata share of coal produced by operations owned or controlled by the person who owns or controls the applicant's operation;

(iv) All coal produced by persons who own more than 5 percent of the applicant's operation and who directly or indirectly control the applicant's operation by reason of stock ownership, direction of the management or in any other manner, whatsoever; and

(v) All coal produced by operations owned by members of the applicant's family and the applicant's relatives, unless it is established that there is no direct or indirect business relationship between or among them.

2.09.3Filing for Assistance.

(1) Each applicant for small operator assistance shall submit the following information to the Division: 108, 112

(a) A statement of intent to file a permit application;

(b) The names and addresses of:

(i) The potential permit applicant; and

(ii) The potential operator if different from the applicant.

(c) A schedule of the estimated total production of coal from the proposed permit area and all other locations from which production is attributed by the applicant under 2.09.2(1)(d). The schedule shall include for each location:

(i) The name under which the coal is or will be mined;

(ii) The permit number and Mining Enforcement and Safety Administration identification number if the mine is operating;

(iii) The actual coal production for the year preceding the application for assistance and that portion of the production attributed to the applicant; and

(iv) The estimated coal production for each year of the proposed permit and that portion attributed to the applicant;

(d) A description of:

(i) The method of surface coal mining operation proposed;

(ii) The anticipated starting and termination dates of mining operations;

(iii) The number of acres of land to be affected by the proposed mining; and

(iv) A general statement on the probable depth and thickness of the coal resource, including the reserves in the permit area and the method by which they were calculated.

(e) A U.S. Geological Survey topographic map of 1:24,000 scale or larger or other topographic map of equivalent detail which clearly shows:

(i) The area of land to be affected and the natural drainage above and below the affected area;

(ii) The names of property owners within the area to be affected and of adjacent lands;

(iii) The location of existing structures and developed water sources within the area to be affected and on adjacent lands;

(iv) The location of existing and proposed test boring or core samplings; and

(v) The location and extent of known workings of any underground mines within the proposed permit or adjacent area.

(f) Copies of documents which show that:

(i) The applicant has legal right to enter and commence mining within the permit area; and

(ii) A legal right of entry has been obtained for the Division and laboratory personnel to inspect the lands to be mined and adjacent lands which may be affected to collect environmental data or install necessary instruments.

(2) Applicants requesting any other necessary technical and administrative assistance shall submit the information required in 2.09.3(1)(a) through (f) and any other information required by the Division.

2.09.4Application Approval and Notice.

(1) If the Division finds the applicant eligible for the services of a qualified laboratory, and it does not have information readily available which would preclude issuance of a permit to the applicant for mining in the area proposed, it shall: 108, 112

(a) Determine the minimum data requirements necessary to meet the provisions of 2.09.5; and

(b) Select the services of one or more qualified laboratories to perform the required work. A copy of the contract or work order and the final approved report shall be provided to the applicant.

(2) If the Division finds the applicant eligible for other necessary technical and administrative assistance and it does not have readily available information which would preclude issuance of a permit to the applicant for mining, then to the extent that funding or services are available for this purpose, it shall provide the minimum services necessary to meet the provisions in these Rules for which the applicant has requested assistance. The services or assistance may be provided by personnel of the Division or independent contractors selected by the Division. A copy of any contract or work order let to provide the assistance shall be provided to the applicant.

(3) The Division shall inform the applicant in writing if the application is denied and shall state the reason for denial.

(4) The granting of assistance under this part shall not be a factor in decisions by the Division in a subsequent permit application.

2.09.5Minimum Data Requirements.

(1) The Division shall determine the data needed for each applicant or group of applicants. The data collected and results provided to the Division shall be sufficient to satisfy the requirements for the following: 112

(a) The determination of the probable hydrologic consequences of the surface mining and reclamation operations in the proposed permit area and adjacent areas in accordance with rule 2.05.6 and any other applicable provision of this rule;

(b) The statement of the results of test borings, core samplings or samples obtained by other methods approved by the Division for the proposed permit area in accordance with rule 2.04.6 and any other applicable provisions of this rule; and

(c) Data collection and analysis may proceed concurrently with the development of mining and reclamation plans by the operator.

(2) Data collected under this program shall be made available to all interested persons, except information related to the chemical and physical properties of coal. Information regarding the mineral or elemental content of the coal which is potentially toxic in the environment shall be made available. 110(2)(1)

2.09.6 Qualified Laboratories.

(1) The Division shall designate qualified laboratories. Persons who desire to be included in the list of qualified laboratories established by the Division shall apply to the Division and provide such information as is necessary to establish the qualifications required by 2.09.6. 112(1)(a)

(2) To qualify for designation a laboratory shall demonstrate that it:

(a) Is staffed with experienced, professional personnel in the fields of hydrology, mining engineering, aquatic biology, geology or chemistry applicable to the work to be performed;

(b) Is capable of collecting necessary field data and samples;

(c) Has adequate space for material preparation, cleaning and sterilizing necessary equipment, stationary equipment, storage, and space to accommodate period of peak work loads;

(d) Meets the requirements of the Occupational Safety and Health Act or the equivalent State safety and health program;

(e) Has the financial capability and business organization necessary to perform the work required;

(f) Has analytical, monitoring and measuring equipment capable of meeting the applicable standards of 2.03.3(4); and

(g) Has the capability of making hydrologic field measurements and analytical laboratory determinations by acceptable hydrologic engineering or analytical methods, or by those appropriate methods or guidelines for data acquisition recommended by the Division.

(3) To become qualified, a laboratory must be capable of performing either the determination or statement under 2.09.5(1)(a) or (b) and meeting the requirements of 2.09.6. Subcontractors may be used to provide the services required provided their use is defined in the application for designation and is approved by the Division.

(4) The Division may, after reasonable inquiry, disqualify a previously qualified laboratory, as defined in 2.08, if the Division determines that the requirements of 2.09.6(2) and 2.09.5 are not being met.

2.09.7Assistance Funding.

(1) Use of funds. Funds authorized for this program shall not be used to cover administrative costs or the costs of test boring or core sampling.

(2) Allocation of Funds. The Division shall to the extent practicable establish a formula for allocating funds among eligible small operators if available funds are less than those required to provide the services. This formula shall include such factors as the applicant's:

(a) Anticipated date of filing a permit application;

(b) Anticipated date for commencing mining; and

(c) Performance history.

2.09.8Applicant Liability.

(1) The applicant shall reimburse the Division for the cost of the laboratory services performed pursuant to 2.09 if the applicant: 108, 112

(a) Submits false information;

(b) Fails to submit a permit application within 1 year from the date of receipt of the approved laboratory report;

(c) Fails to mine after obtaining a permit;

(d) Produces coal, both actual and attributed production, in excess of 100,000 tons during any consecutive twelve-month period or mining under the permit for which the assistance is provided; or

(e) Sells, transfers, or assigns the permit to another person whose total actual and attributed production exceeds 100,000 tons during any consecutive twelve month period of the remaining permit term. In such a case, the applicant and its successor are jointly and severally obligated to reimburse the Division.

(2) The Division may waive the reimbursement obligation if it finds that the applicant at all times acted in good faith.

2.10MAPS AND PLANS

2.10.1General Requirements.

Maps submitted with applications shall be presented in a consolidated format and shall legibly detail all the information set forth on topographic maps of the U.S. Geologic Survey of the 1:24,000 scale series. 110(2)(n)

(1) Maps of the disturbed area shall be at a scale of 1:6,000 or larger if requested by the Division for good cause shown or desired by the operator. In addition, the map shall include all roads and support facilities within the permit area.

(2) Maps of the remainder of the area to be affected and the adjacent areas shall clearly show the lands and waters within those areas and be at a scale of 1:24,000 or larger if requested by the Division for good cause shown or desired by the operator.

(3) All maps shall show the permit area boundaries where the area of the map covers the boundaries.

2.10.2Permit and Adjacent Areas.

One map and plan submitted with the application shall distinguish among each of the phases during which surface coal mining operations were or will be conducted at any place within the permit area and adjacent area. At a minimum, distinctions shall be clearly shown among those portions of the permit area and adjacent areas in which surface coal mining operations occurred:

(1) Prior to August 3, 1977;

(2) After August 3, 1977, and prior to either:

(a) May 3, 1978, or

(b) In the case of an applicant or permittee which obtained a small operator's exemption in accordance with the interim Federal regulatory program, January 1, 1979;

(3) After May 3, 1978 (or January 1, 1979, for persons who received a small operator's exemption) and prior to the approval of the applicable regulatory program.

2.10.3Specific Information Requirements.

(1) In addition to any other maps specifically required by Rule 2, the permit application shall include maps showing:

(a) All boundaries of lands and names of present owners of record of those lands, both surface and subsurface, included in or contiguous to the permit area; 110(2)(j), 111(1)(a)

(b) The boundaries of land within the proposed permit area upon which the applicant has the legal right to enter and begin surface or underground mining activities;

(c) The boundaries of all areas proposed to be affected over the estimated total life of the proposed surface or underground mining activities, with a description of size, sequence, and timing of the mining and subareas for which it is anticipated additional permits will be sought;

(d) The location of all buildings on and within 1,000 feet of the proposed permit area, with identification of the current use of the buildings; 110(2)(h)

(e) The location of surface and subsurface manmade features within, passing through, or passing over the proposed permit area, including, but not limited to major electric transmission lines, pipelines, and agricultural drainage tile fields;

(f) Each public road located in, or within 100 feet of the proposed permit area;

(g) The boundaries of any National Natural Landmarks, Designated Natural Areas, public park and location of any cultural or historical resource listed on or eligible for listing, as determined by the SHPO, on the National Register of Historic Places and known archeological sites within the permit area or adjacent areas. 114(2)(g)(V)

(h) Each public or private cemetery or Indian burial ground located in, or within 300 feet of, the proposed permit area; 114(2)(g)(V)

(i) Any land within the proposed permit area and adjacent area which is within the boundaries of any units of the National System of Trails or Wild and Scenic Rivers System, including study rivers designated under Section (5)(a) of the Wild and Scenic River Act; and

(j) A map of the existing topography within the area to be affected during the estimated life of the operation and adjacent lands. This map shall be in sufficient detail so as to represent slopes and configuration of all surface features within the area to be affected.

(k) The location and extent of known workings of active, inactive, or abandoned underground mines including mine openings to the surface within the proposed permit and adjacent areas and the location and extent of existing or previously surface mined areas within the proposed permit area.

(l) Other relevant information required by the Division, for good cause shown, based on site specific condition.

(2) Maps, plans, and cross sections included in the permit application which are required by 2.10 shall be prepared by or under the direction of, and certified by, a qualified registered professional engineer or professional geologist, with assistance from experts in related fields such as land surveying and landscape architecture and shall be updated by the permittee as required by the Division. 110(2)(o)

2.11Challenging Ownership or Control Listings and Findings

2.11.1Who may challenge ownership or control listings and findings.

An entity may challenge a listing or finding of ownership or control using the provisions under Rules 2.11.2 and 2.11.3 if he/she/it is:

(1) Listed in a permit application or in AVS as an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof;

(2) Found to be an owner or controller of an entire surface coal mining operation, or any portion or aspect thereof, under Rule 2.07.8(1) or 2.07.9(7) of these Rules; or

(3) An applicant or permittee affected by an ownership or control listing or finding.

2.11.2How to challenge an ownership or control listing or finding.

This section applies to those entities challenging an ownership or control listing or finding.

(1) To challenge an ownership or control listing or finding, the challenger must submit a written explanation of the basis for the challenge, along with any evidence or explanatory materials he/she/it wishes to provide under Rule 2.11.3, to the Division, as follows:

(a) If the challenge concerns a pending state or federal permit application, the challenger must submit a written explanation to the regulatory authority with jurisdiction over the application.

(b) If the challenge concerns ownership or control of a surface coal mining operation, and the challenger is not currently seeking a permit, then a written explanation must be submitted to the regulatory authority with jurisdiction over the surface coal mining operation.

(2) The provisions of this rule and of Rules 2.11.3 and 2.11.4 apply only to challenges to ownership or control listings or findings. These provisions may not be used to challenge liability or responsibility under any other provision of the Act or its implementing Rules and Regulations.

(3) When the challenge concerns a violation under the jurisdiction of a different regulatory authority, the regulatory authority with jurisdiction over the permit application or permit must consult the regulatory authority with jurisdiction over the violation and the AVS Office to obtain additional information.

(4) A regulatory authority responsible for deciding a challenge under paragraph (a) of this section may request an investigation by the AVS Office.

(5) At any time, a person listed in AVS as an owner or controller of a surface coal mining operation may request an informal explanation from the AVS Office as to the reason he/she is shown in AVS in an ownership or control capacity. Within 14 days of the request, the AVS Office will provide a response describing why he/she is listed in AVS.

2.11.3Burden of proof for ownership or control challenges.

This section applies to challengers of an ownership or control listing or finding.

(1) When challenging a listing of ownership or control, or a finding of ownership or control made under Rule 2.07.9, the challenger must prove by a preponderance of the evidence that the challenger either:

(a) Does not own or control the entire operation or relevant portion or aspect thereof; or

(b) Did not own or control the entire operation or relevant portion or aspect thereof during the relevant time period.

(2) In meeting the burden of proof, the challenger must present reliable, credible, and substantial evidence and any explanatory materials to the Division. The materials presented in connection with the challenge will become part of the permit file, an investigation file, or another public file. If requested, the Division will hold as confidential any information submitted under this paragraph which is not required to be made available to the public under Rules 2.07.5 and 5.02.4.

(3) Materials that may be submitted in response to the requirements of paragraph (b) of this rule include, but are not limited to:

(a) Notarized affidavits containing specific facts concerning the duties that the challenger performed for the relevant operation, the beginning and ending dates of his/her ownership or control of the operation, and the nature and details of any transaction creating or severing his/her ownership or control of the operation.

(b) Certified copies of corporate minutes, stock ledgers, contracts, purchase and sale agreements, leases, correspondence, or other relevant company records.

(c) Certified copies of documents filed with or issued by any State, municipal, or Federal governmental agency.

(d) An opinion of counsel, when supported by:

(i) Evidentiary materials;

(ii) A statement by counsel that he or she is qualified to render the opinion; and

(iii) A statement that counsel has personally and diligently investigated the facts of the matter.

2.11.4Written decision on challenges to ownership or control listings or findings.

(1) Within 60 days of receipt of a challenge under Rule 2.11.2, the Division will review and investigate the evidence and explanatory materials submitted and any other reasonably available information bearing on the challenge and issue a written decision. The decision must state whether the challenger owns or controls the relevant surface coal mining operation, or owned or controlled the operation, during the relevant time period.

(2) The Division will promptly provide the challenger with a copy of its decision by either:

(a) Certified mail, return receipt requested; or

(b) Any means consistent with the rules governing service of a summons and complaint under Rule 4 of Chapter 1 of the Colorado Rules of Civil Procedure.

(3) Service of the decision is complete upon delivery and is not incomplete if the challenger refuses to accept delivery.

(4) The Division will post all decisions made under this section on AVS.

(5) Any person who receives a written decision under this section, and who wishes to appeal that decision, may do so as set forth in Rule 2.07.4.

(6) Following the Division's written decision or any decision by the Board or a reviewing administrative or judicial tribunal, the Division must review the information in AVS to determine if it is consistent with the decision. If it is not, the Division must promptly revise the information in AVS to reflect the decision.

2 CCR 407-2-2