RULE 1 GENERAL PROVISIONS

1.01 SCOPE

These Rules are proposed in accordance with Title 34, Article 33 of the Colorado Revised Statutes of 1973 (House Bill No. 1223), known as the Colorado Surface Coal Mining Reclamation Act, and establish the procedures through which the Board and the Division will implement the provisions of the Act. A written statement of the basis and purpose of these Rules has been prepared and adopted by the Mined Land Reclamation Board, and is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4).

A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on August 26, 1981 and effective September 30, 1981, is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on January 27, 1982 and effective March 2, 1982, is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on May 24, 1984, and effective June 30, 1984, is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on August 22, 1984 and effective September 30, 1984, is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on September 27, 1984 and effective November 30, 1984, is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board.

A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on November 15, 1984 and effective January 24, 1985, is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on April 24, 1986 is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on July 24, 1986 is hereby incorporated in these Rules by reference pursuant to C.R.S., 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on October 23, 1986 and effective November 30, 1986 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement of the basis and purpose of the amendments to these Rules adopted by the Board on December 16, 1987 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on December 14, 1988 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on May 23, 1990 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on May 22, 1991 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement of the basis, specific statutory authority, and purpose of the amendments to these rules adopted by the Board on March 23, 1994 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement of the basis, specific statutory authority, and purpose of the amendments to these rules adopted by the Board on May 24, 1995 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1973, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on January 24, 1996 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1995, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on December 18, 1996 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1995, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on March 21, 2001 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1995, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on June 26, 2002 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1995, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board. A written statement on the basis and purpose of the amendments to these Rules adopted by the Board on September 14, 2005 is hereby incorporated in these Rules by reference pursuant to C.R.S. 1995, 24 4 103(4) and is available at the Office of the Mined Land Reclamation Board.

(1) Rule 1 contains direction on the State's regulatory authorities and responsibilities under the Act, definitions applicable to the Rules and directions on the restriction of State employee financial interests.

(2) Rule 2 contains requirements for the application for, and decisions on, permits for surface coal mining and reclamation operations. Rule 2 addresses coal exploration and requirements and decisions on permits for special categories of coal mining.

(3) Rule 3 establishes requirements and procedures pertaining to reclamation performance bonds, their release and forfeiture.

(4) Rule 4 contains environmental and other performance standards that apply to coal exploration and surface coal mining and reclamation operations. The standards establish the minimum requirements for such activities. Performance standards applicable to special mining situations such as alluvial valley floors, prime farmland, mountaintop removal and operations on steep slopes are included.

(5) Rule 5 specifies inspection, enforcement and civil penalty provisions.

(6) Rule 6 specifies requirements for the training, examination and certification of blasters.

(7) Rule 7 identifies the criteria and procedures for the designation of lands unsuitable for surface coal mining operations.

(8) Rule 8 contains the Mine Subsidence Protection Program.

(9) Materials cited in these rules are hereby incorporated by reference. The materials incorporated in these rules by reference do not include later amendments to or editions of the incorporated materials. All materials incorporated by reference are available for inspection at State Publications Depository Libraries, through inter-library loan, and at the Division office located in Room 215, Centennial Building, 1313 Sherman Street, Denver, Colorado 80203. The Division director can provide further information regarding how the incorporated material may be obtained or examined.

1.02 AUTHORITY

The Division and Board have the full power and authority to carry out and administer the provisions of the Act. The Division and Board have jurisdiction and authority over all persons and property, public and private, necessary to enforce the provisions of the Act and these Rules.

1.03 RESPONSIBILITIES

1.03.1 The Division and Board are responsible for:

(1) The regulation of surface coal mining and reclamation operations and coal exploration. This responsibility includes the following activities:

(a) Receive notices of intention to explore and applications for new, revised or renewed approvals for coal exploration and permits for surface coal mining and reclamation operations, review those applications and approve or disapprove requests for exploration approvals, permits, revisions and renewals of existing permits;

(b) Receive fees for permit applications;

(c) Implement, administer and enforce a system of performance bonds or other equivalent guarantees;

(d) Inspect and monitor coal exploration and surface coal mining and reclamation operations including provisions allowing for public participation in the process;

(e) Enforce the administrative, civil and criminal sanctions of the Act and these Rules;

(f) Administer and enforce the performance standards as set forth in the Act and these Rules;

(g) Issue public notices and hold public hearings;

(h) Consult with State and Federal agencies having responsibility for the protection and management of fish, wildlife, historic, cultural and archeological resources, and related environmental values;

(i) Monitor, review and enforce restrictions against direct and indirect financial interests of state employees in coal exploration, surface coal mining and reclamation operations or underground mining activities;

(j) Provide for public participation in the development, revision and enforcement of State Rules, the State program, and permits under the State program;

(k) Provide administrative review of actions required by the Act and these Rules;

(l) Provide for a small operator assistance program; and (m) Provide for the training, examination and certification of blasters.

(2) Administering, maintaining, and enforcing an approved cooperative agreement between the Governor of Colorado and the Secretary. Such agreements will provide cooperative Federal and State regulation of surface coal mining and reclamation operations on Federal lands within the State; and (3) If a Mining and Mineral Research Institute is created pursuant to Section 801 and funded pursuant to 802 of the Surface Mining Control and Reclamation Act of 1977 (P.L. 95 87) in the State of Colorado, and Part 890 of Chapter VII of 30 CFR, the Board and Division may advise and provide guidance to the Institute in identifying research needs in the fields of coal energy resources and conversion and environmental areas which include but are not limited to surface coal mining and reclamation operations. 106(1)(a)

1.03.2 The Board is responsible for: 108

(1) The development and promulgation of reasonable Rules and Regulations respecting the administration and enforcement of the Act;

(2) Making decisions on the designation of areas unsuitable for surface coal mining operations, on the termination of such decisions and on frivolous petitions; 126(1)(a) (3) The formation of a data base and inventory system to be used in the evaluation of petitions for designating lands unsuitable; and 130(1)

(4) Requesting data and technical assistance, as it deems necessary for the performance of reclamation and enforcement duties prescribed by these Rules and the Act from the Department of Agriculture, the Department of Higher Education, the Department of Health, the State Soil Conservation Board, the Colorado Geological Survey, the Division of Parks and Outdoor Recreation, the Division of Water Resources, the Division of Wildlife, the University of Colorado, Colorado State University, Colorado School of Mines, and the State Forester. It is the duty of these agencies to furnish the Board and its designees such data and technical assistance, as is practically required, in a timely manner that will allow compliance with Sections 34 33 118, 34 33 119 and 34 33 126 of the Act. 106(2)

1.03.3 The Division shall:

(1) Carry on a continuing review of the problems of surface coal mining and land reclamation in the State; 106(1)(a)

(2) Cause to be published the monthly agenda of the Board with a brief description of any affected land and the name of the applicant. These publications shall be in a newspaper of general circulation in the locality of the proposed surface coal mining operations listed in that month's agenda. The Division shall also cause to be published monthly, and mailed to all persons on the mailing list and any party to an administrative proceeding in these Rules, a list including name of the applicant, operator, or petitioner for: 106(1)(b)

(a) Newly filed notices of intent to explore;

(b) Pending coal exploration applications;

(c) New, revised, or renewed permit applications;

(d) Pending petitions to designate lands unsuitable for surface coal mining;

(e) Requests for bond release; and (f) Notices of informal conferences or public hearings pertaining to any of these Rules, scheduled for the upcoming month.

(3) Coordinate the issuance of surface coal mining and reclamation permits and the approval of coal exploration required by the Act and these Rules with other State, Federal and local agencies.

1.03.4 The Department.

(1) The Department may initiate and encourage studies and programs with the Division and other appropriate state agencies relating to the development of less destructive methods of surface coal mining operations, better methods of land reclamation, and more effective post reclamation use. The Department and Division shall coordinate the provisions of the Act and these Rules with the programs of other state agencies dealing with environmental, recreational, rehabilitation, and related concerns. 107 (2) (a) The Department and any person contemplating opening a surface coal mining operation in this state may, at their discretion, enter into one or more site specific agreements to identify and coordinate local, State, and Federal government jurisdiction and review of land use planning, environmental analysis, and socioeconomic evaluation, to establish coordinating procedures for required action, and to ensure that such procedures be undertaken in a timely, sequential manner. Any such agreements shall be consistent with the provisions of the Act and these Rules.

(b) Such site specific agreements may include:

1. (i) The schedule for completion of data collection required for environmental, technical, and policy review; and (ii) The schedule for completion of evaluation, review, and comments by all parties.

(c) Such agreements may list all applicable laws, regulations, and ordinances of this State and its agencies, the Federal government and its agencies, and of the county or counties in which the proposed operation will be situated. The Department may, with the advice and concurrence of the Board, develop rules and regulations to ensure relative uniformity in such agreements.

1.04 DEFINITIONS

(1) "Abandoned site" means a surface coal mining and reclamation operation for which the Division has found in writing that:

(a) All surface and underground coal mining and reclamation activities of the operator at the site have ceased;

(b) The Division has issued at least one notice of violation or cessation order, and either:

1. (i) Is unable to serve the notice despite diligent efforts to do so; or (ii) The notice was served and has progressed to a failure-to-abate cessation order;

(c) The Division:

1. (i) Is taking action to ensure that the permittee and operator, and owners and controllers of the permittee and operator, will be precluded from receiving future permits while violations continue at the site; and (ii) Is taking action pursuant to sections 34-33-123(7), 123(9), 123(10), or 123(12) of the Act to ensure that abatement occurs, or that there will not be a recurrence of the failure to abate, except where after evaluating the circumstances it concludes that further enforcement offers little or no likelihood of successfully compelling abatement or recovering any reclamation costs; and

(d) Where the site is, or was, permitted or bonded:

1. (i) The permit has either expired or been revoked; and (ii) The Division has initiated and is diligently pursuing forfeiture of, or has forfeited, any available performance bond.

(1a) "Acid drainage" means water with a pH of less than 6.0 and in which total acidity exceeds total alkalinity, discharged from an active, inactive, or abandoned surface coal mine and reclamation operation or from an area affected by surface coal mining and reclamation operations.

(2) "Acid-forming materials" means earth materials that contain sulfide minerals or other materials which, if exposed to air, water or weathering processes, form acids that may create acid drainage.

(3) "Act" means the Colorado Surface Coal Mining Reclamation Act, Article 33 of Title 34, as amended, Colorado Revised Statutes of 1973.

(4) "Active mining area" means a place where work or other activity related to the extraction, removal, or recovery of coal is being conducted except, with respect to surface mines, any area of land on or in which grading has been completed to return the earth to desired contour and reclamation work has begun.

(5) "Administrator" means the director of the Division of Mined Land Reclamation in the Department of Natural Resources. 103(1)

(6) "Adjacent area" means land located outside the affected area, permit area or area to be affected over the life of the mine depending on the context in which adjacent area is used, where air, surface or ground water, fish, wildlife, vegetation or other resources protected by the Act may be adversely affected by surface coal mining and reclamation operations.

(7) "Affected area" means, with respect to surface coal mining activities, any land or water upon or in which those activities are conducted or located. With respect to underground mining activities, "affected area" means: (i) any water or surface land upon or in which those activities are conducted or located; and (ii) land or water which is located above or below underground mine workings.

(8) "Agricultural activities" means, with respect to alluvial valley floors, the use of any tract of land for the production of animal or vegetable life, in a manner typical of regional agricultural practices, where the use is enhanced or facilitated by subirrigation or flood irrigation associated with alluvial valley floors. These uses include, but are not limited to, the pasturing, or grazing, of livestock, and the cropping, cultivation, or harvesting of plants whose production is aided by the availability of water from subirrigation or flood irrigation. These uses do not include agricultural practices which do not benefit from the availability of water from subirrigation or flood irrigation.

(9) "Agricultural use" means the use of any tract of land for the production of animal or vegetable life. The uses include, but are not limited to, the pasturing, grazing, and watering of livestock, and the cropping, cultivation, and harvesting of plants.

(10) "Alluvial valley floors" means the unconsolidated stream laid deposits holding streams with water availability sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas which are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits formed by unconcentrated runoff or slope wash, together with talus, other mass movement accumulations, and windblown deposits. 103(2) (11) "Applicant" means any person who seeks to obtain exploration approval or a permit.

(12) "Application" means the documents and other related information filed with the Board and the Division, in accordance with the Act and these Rules, for the issuance of exploration approval or a permit.

(13) "Approximate original contour" means that surface configuration achieved by backfilling and grading of the mined areas so that the reclaimed area, including any terracing or access roads, closely resembles the general surface configuration of the land prior to mining and blends into and complements the drainage pattern of the surrounding terrain, with all the highwalls, refuse piles and spoil piles eliminated. Water impoundments may be permitted where the Board determines that they are in compliance with Section 34 33 120(2)(h) of the Act and 4.05.9, 4.05.17 and 4.16. 103(3)

(14) "Aquifer" means a zone, stratum or group of strata acting as a hydraulic unit that can store and transmit water in sufficient quantities for beneficial use.

(15) "Area" (with respect to designation of an area as unsuitable in Rule 7) means an amount of surface land or water defined with sufficient precision so as to enable the Board and other interested persons to determine, with reasonable exactness, its location and size. An "area" is generally larger than, and may encompass more acreage than, a specific mine site.

(16) "Auger mining" means a method of mining coal at a cliff or highwall by drilling holes into an exposed coal seam from the highwall and transporting the coal along an auger bit to the surface.

(17) "Best technology currently available" means equipment, devices, systems, methods, or techniques which will (a) prevent, to the extent possible, additional contributions of suspended solids to stream flow or runoff outside the permit area but in no event result in contributions of suspended solids in excess of requirements set by applicable State or Federal laws; and (b) minimize, to the extent possible, disturbances and adverse impacts on fish, wildlife and related environmental values, and achieve enhancement of those resources where practicable. The term includes equipment, devices, systems, methods, or techniques which are appropriate for intended use and are currently available, as determined by the Division, even if they are not in routine use. The term includes, but is not limited to, construction practices, siting requirements, vegetation selection and planting requirements, animal stocking requirements, scheduling of activities and design of sedimentation ponds in accordance with these Rules and the Act. Within the constraints of the Act and these Rules, the Division shall have the discretion to determine the best technology currently available on a case by case basis.

(17a) "Blaster certification program" means the requirements set forth in Rule 6 to ensure that all blasting operations are conducted by trained and competent persons.

(18) "Board" means the Mined Land Reclamation Board created pursuant to Section 34 32 105, C.R.S. 103(4)

(19) "Cash" means (a) all cash items except cash (1) restricted by an agreement, or (2) described as earmarked for a particular purpose; and (b) short term investments such as stock, bonds, notes, and certificates of deposit, where the intent and ability to sell them in the near future is established by the operator.

(20) "Cemetery" means an area of land where human bodies are interred.

(20a) "Certified blaster" means a person certified under the requirements of Rule 6 to be directly responsible for the blasting operations in surface coal mining operations, and surface blasting operations of underground coal mining operations. A certified blaster shall be familiar with the blasting requirements of Rule 2.05.4(6) and 4.08. A certified blaster is differentiated from a shotfirer certified by the State of Colorado in accordance with 34 21 116, C.R.S. A certified blaster has design responsibilities, whereas the shotfirer does not. The blaster certification applies only to surface blasting activities, whereas the shotfirer certification applies to surface and underground blasting activities.

(21) "Coal" means combustible, carbonaceous rock, classified as anthracite, bituminous, subbituminous, or lignite, by the American Society of Testing and Materials, (ASTM) publication D 388 77, "Standard Specifications for Classification of Coal by Rank," pages 220 through 224. This publication is hereby incorporated by reference as it exists on the date of adoption of these regulations.

(22) "Coal exploration" means (a) the field gathering of surface or subsurface geologic, physical, or chemical data by mapping, trenching, drilling, geophysical, or other techniques necessary to determine the quality and quantity of overburden and coal of an area; (b) the disturbance of the natural land surface in the gathering of environmental data to establish the conditions of an area before beginning surface coal mining and reclamation operations under the requirements of these Rules; or (c) the gathering of any environmental data in an area designated unsuitable for surface coal mining operations.

(22a) "Coal mine waste" means coal processing waste and underground development waste.

(23) "Coal processing plant" means a collecting of facilities where coal is subjected to chemical or physical processing, including crushing and sizing, to separate the coal from its impurities and other activities necessary for the beneficiation of coal into a saleable form. These facilities may consist of, but need not be limited to: refuse pile reprocessing facilities, loading facilities; storage and stockpile facilities; sheds, shops and other buildings; water treatment and water storage facilities; settling basins and impoundments; coal processing and other waste disposal areas; roads, attendant railroads and other transport facilities.

(24) "Coal processing waste" means earth materials which are separated and wasted from product coal, after physical processing to separate the coal from its impurities and other activities necessary for the beneficiation of coal into a saleable form.

(25) "Collateral bond" means an indemnity agreement in a sum certain payable to the State executed by the permittee and which is supported by the deposit with the State of cash in a federally insured or equivalently protected account, negotiable bonds of the United States government or any political subdivision of this State endorsed to the order of the State, negotiable certificates of deposit, or an irrevocable letter of credit of any bank organized or transacting business in the United States.

(26) "Combustible material" means organic material that is capable of burning, either as self sustained fire or through oxidation, accompanied by the evolution of heat and a significant temperature rise.

(27) "Community or institutional building" means any structure, other than public building or occupied dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mental health or physical health care facility; or is used for public services, including, but not limited to, water supply, power generation and sewage treatment.

(28) "Compaction" means increasing the density of a material by reducing the voids between the particles and is generally accomplished by controlled placement and mechanical effort such as repeated application of wheel, track or roller loads from heavy equipment.

(29) "Complete exploration application" means an application for exploration approval which contains all information required under 2.02 and the Act.

(30) "Complete permit application" means an application which minimally addresses each and every requirement of Rules 2 and 4 and Sections 34 33 110 and 34 33 111 and Sections 34 33 120 or 34 33 121 of the Act. 103(5)

(31) "Cropland" means land used for the production of adapted crops for harvest, alone or in a rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops.

(31a) "Cumulative impact area" means the area which includes, at a minimum, the entire projected lives through bond release of: the proposed operation; all existing operations; any operation for which a permit application has been submitted to the Division; all other operations required to meet diligent development requirements for leased federal coal, for which there is actual mine development information available.

(31b) "Current assets" means cash or other assets or resources which are reasonably expected to be converted to cash or sold or consumed within one year or within the normal operating cycle of the business.

(31c) "Current liabilities" means obligations which are reasonably expected to be paid or liquidated within one year or within the normal operating cycle of the business.

(32) "Department" means the Department of Natural Resources. 103(6) (33) "Designated Natural Areas" mean those areas designated pursuant to the Colorado Natural Areas Act, Section 36 10 101 et seq., C.R.S.

(34) "Direct financial interest" means ownership or part ownership by an employee of lands, stocks, bonds, debentures, warrants, partnership shares, or other holdings and also means any other arrangement where the employee may benefit from his or her holding in or salary from coal exploration, surface coal mining and reclamation operations or underground mining activities. Direct financial interests include employment, pensions, creditor, real property and other financial relationships.

(35) "Director" means the Director, Office of Surface Mining Reclamation and Enforcement or the Director's representative.

(36) "Disturbed area" means an area where vegetation, topsoil, or overburden is removed or upon which topsoil, spoil, coal processing waste, underground development waste or noncoal waste is placed by surface coal mining operations. Those areas are classified as disturbed until reclamation is completed and the performance bond or other assurance of performance required by Rule 3 is released.

(37) "Diversion" means a channel, embankment, or other manmade structure constructed to divert water from one area to another or to change the route of a natural water course.

(38) "Division" means the Division of Mined Land Reclamation in the Department of Natural Resources. 103(7)

(39) "Downslope" means the land surface below the projected coal seam to be mined.

(40) "Embankment" means an artificial deposit of material that is raised above the natural surface of the land and used to contain, divert, or store water, support roads or railways, or for other similar purposes.

(41) "Employee" (regarding employee financial interests in Section 1.10) means:

(a) Any person employed by the Division who performs any function or duty under the Act; and (b) Consultants to the Board or Division who perform any function or duty under the Act, which involves decision making functions for the Division under the authority of State law or regulations;

(c) But does not mean members of the Board.

(42) "Ephemeral stream" means a stream which flows only in direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow or ice, and which has a channel bottom that is always above the local water table.

(43) "Essential hydrologic functions" means the role of an alluvial valley floor in collecting, storing, regulating, and making the natural flow of surface or ground water, or both, usefully available for agricultural activities by reason of the valley floor's topographic position, the landscape and the physical properties of its underlying materials. A combination of these functions provides a water supply during extended periods of low precipitation.

(a) The role of the valley floor in collecting water includes accumulating runoff and discharge from aquifers in sufficient amounts to make the water available at the alluvial valley floor greater than the amount available from direct precipitation.

(b) The role of the alluvial valley floor in storing water involves limiting the rate of discharge of surface water, holding moisture in soils, and holding ground water in porous materials.

(c) (i) The role of the alluvial valley floor in regulating the natural flow of surface water results from the characteristic configuration of the channel flood plain and adjacent low terraces.

1. (ii) The role of the alluvial valley floor in regulating the natural flow of ground water results from the properties of the aquifers which control inflow and outflow.

(d) The role of the alluvial valley floor in making water usefully available for agricultural activities results from the existence of flood plains and terraces where surface and ground water can be provided in sufficient quantities to support the growth of agriculturally useful plants, from the presence of earth materials suitable for growth of agriculturally useful plants, from the temporal and physical distribution of water making it accessible to plants throughout the critical phases of the growth cycle either by flood irrigation or by subirrigation, from the natural control of alluvial valley floors in limiting destructive extremes of stream discharge, and from the erosional stability of earth materials suitable for the growth of agriculturally useful plants.

(43a) "Excess spoil" means spoil material not necessary to achieve the approximate original contour, provided that spoil material used to blend the mined area with the surrounding terrain in non steep slope areas shall not be considered excess spoil.

(44) "Executive Director" means the executive director of the Department of Natural Resources. 103(8) (45) "Existing structure" means a structure or facility used in connection with or to facilitate surface coal mining and reclamation operations for which construction begins prior to the approval of a State program or implementation of a Federal program or Federal lands program, whichever occurs first.

(46) "Extraction of coal as incidental part" means the extraction of coal which is necessary to enable the construction to be accomplished. For purposes of these Rules, only that coal extracted from within the right of way, in the case of a road, railroad, utility line or other construction, or within the boundaries of the area directly affected by other types of government financed construction, may be considered incidental to that construction. Extraction of coal outside the right of way or boundary of the area directly affected by the construction shall be subject to the requirements of the Act and these Rules.

(46a) "Farming", with respect to alluvial valley floors, is synonymous with the term "agricultural activities".

(47) "Federal land" means any land, including mineral interests, owned by the United States, but excluding Indian lands. 103(9)

(47a) "Fixed assets" means plants and equipment, but does not include land or coal in place.

(48) "Flood irrigation" means, with respect to alluvial valley floors, supplying water to plants by natural overflow or the diversion of flows, so that the irrigated surface is largely covered by a sheet of water.

(49) "Fragile lands" (e.g. designation of lands unsuitable) means geographic areas containing natural, ecologic, scientific or esthetic resources that may easily suffer damage or destruction by surface coal mining operations. Examples of fragile lands may include uncommon surface geologic formations, valuable habitats for fish or wildlife, critical habitats for endangered or threatened species of animals or plants, National Landmark Sites, Designated Natural Areas, areas where mining may cause flooding, environmental corridors containing a concentration of ecologic and esthetic features, areas of recreational value due to high environmental quality, and buffer zones adjacent to the boundaries of areas where surface coal mining operations are prohibited under Section 522(e) of 30 USC 1201 and 30 CFR 761.

(50) "Fugitive dust" means that particulate matter not emitted from a duct or stack which becomes airborne due to the forces of wind or surface coal mining and reclamation operations or both. During such operations it may include emissions from haul roads; wind erosion of exposed surfaces, storage piles and spoil piles; reclamation operations and other activities in which material is either removed, stored, transported, or redistributed.

(51) "General area" means, with respect to hydrology, the topographic and ground water basin surrounding the area to be mined during the life of the operation which is of sufficient size, including aerial extent and depth, to include one or more watersheds containing perennial streams and ground water systems and to allow assessment of the probable cumulative impacts on the quality and quantity of surface and ground water systems in the basins.

(52) "Government financing agency" means a Federal, State, county, municipal, or local government body, or a department, bureau, agency or office of the unit which, directly or through another unit of government, finances construction.

(53) "Government financed construction" means construction funded 50 percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds, but shall not mean government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in kind payments.

(54) "Ground water" means subsurface water that fills available openings in rock, soil materials or unconsolidated sediment to the extent that they are considered water saturated.

(55) "Half shrub" means a perennial plant with a woody base whose annually produced stems die back year to year. For the purposes of 2.04.10 and 4.15, half shrubs shall be treated as perennial herbaceous vegetation.

(56) "Head of hollow fill" means a fill structure consisting of any material, other than coal processing waste and organic material, placed in the uppermost reaches of a hollow where side slopes of the existing hollow measured at the steepest point are greater than 20' or the average slope of the profile of the hollow from the toe of the fill to the top of the fill is greater than 10'. In fills with less than 250,000 cubic yards of material, associated with contour mining, the top surface of the fill will be at the elevation of the coal seam. In all other head of hollow fills, the top surface of the fill, when completed, is at approximately the same elevation as the adjacent ridge line, and no significant area of natural drainage occurs above the fill draining into the fill area.

(57) Deleted.

(58) "Highwall" means the face of exposed overburden and coal in an open cut of surface coal mining operations or for entry to underground mining operations.

(59) "Historic lands" means historic or cultural districts, places, structures or objects, including archeological sites; National Historic Landmark sites; sites listed on, or eligible for listing on, after a survey, a State or National Register of Historic Places; sites having religious or cultural significance to native Americans or religious groups or sites for which historic designation is pending.

(60) "Historically used for cropland" means (1) lands that have been used for cropland for any 5 years or more out of the 10 years immediately preceding the acquisition, including purchase, lease, or option, of the land for the purpose of conducting or allowing through resale, lease or option the conduct of surface coal mining operations; (2) lands that the Division determines, on the basis of additional cropland history of the surrounding lands and the lands under consideration, that the permit area is clearly cropland but falls outside the specific 5 years in 10 criterion, in which case the regulations for prime farmland may be applied to include more years of cropland history only to increase the prime farmland acreage to be preserved; or (3) lands that would likely have been used as cropland for any 5 out of the last 10 years immediately preceding such acquisition but for the fact of ownership or control of the land unrelated to the productivity of the land.

(61) "Hydrologic balance" means the relationship between the quality and quantity of water inflow to, water outflow from, and water storage in a hydrologic unit such as a drainage basin, aquifer, soil zone, lake, or reservoir. It encompasses the dynamic relationships among precipitation, runoff, evaporation, transpiration, and changes in ground and surface water storage.

(62) "Hydrologic regime" means the entire state of water movement in a given area. It is a function of the climate and geology, and includes the phenomena by which water first occurs as atmospheric water vapor, passes into a liquid or solid form, falls as precipitation, moves along the ground surface, or into and through the subsurface, and returns to the atmosphere as vapor by means of evaporation and transpiration.

(63) "Imminent danger to the health and safety of the public" means the existence of any condition or practice, or any violation of a permit or other requirement of these Rules in a surface coal mining and reclamation operation which could reasonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions, or practices giving rise to peril, would not expose himself to the danger during the time necessary for abatement. 103(11) (63a) "Impounding structure" means a dam, embankment or other structure used to impound water, slurry, or other liquid or semi liquid material.

(64) "Impoundment" means a basin, naturally formed or artificially built, which is built to or does in fact retain water, sediment, or slurried waste in support of mining and reclamation operations. The immediate active mining pit area is not included.

(65) "Indian lands" means all lands, including, but not limited to, mineral interests within the exterior boundaries of any Federal Indian reservation, notwithstanding the issuance of any patent, and including right of way and all lands including mineral interests held in trust for or supervised by any Indian tribe. 103(12)

(66) "Indian tribe" means any Indian tribe, band, group, or community having a governing body recognized by the Secretary of the United States Department of the Interior. 103(13) (67) "Indirect financial interest" means the same financial relationships as for direct ownership, but where the employee reaps the benefits of such interests, including interests held by his or her spouse, minor child and other relatives, including in laws, residing in the employee's home. The employee will not be deemed to have an indirect financial interest if there is no relationship between the employee's functions or duties and the coal exploration, surface coal mining and reclamation operations or underground mining activity in which the spouse, minor children or other resident relatives hold a financial interest. For purposes of this provision, ownership of shares in mutual funds or other similar diversified investment funds that have interests in coal or coal related firms does not constitute a prohibited indirect financial interest.

(68) "In situ processes" means activities conducted on the surface or underground in connection with in place distillation, retorting, leaching, or other chemical or physical processing of coal. The term includes, but is not limited to, in situ gasification, in situ leaching, slurry mining, solution mining, borehole mining and fluid recovery mining.

(69) "Intermittent stream" means a stream or reach of a stream that is below the local water table for at least some part of the year, and obtains its flow from both surface runoff and ground water discharge.

(70) "Irreparable damage to the environment" and "Irreparable harm to the environment" mean any damage to the environment that cannot be corrected by actions of the applicant.

(70a) "Knowingly" means, with respect to individual civil penalties, that an individual knew or had reason to know in authorizing, ordering or carrying out an act or omission on the part of a corporate permittee that such act or omission constituted a violation, failure or refusal to comply with any regulatory requirements or order of the Board.

(71) "Land use" means specific uses or management related activities rather than the vegetation or cover of the land. Land uses may be identified in combination when joint or seasonal uses occur. All of the land uses defined below may include land used for support facilities which are adjacent to, or are an integral part of the land use. Changes of land uses or uses from one of the following categories to another as a result of surface coal mining and reclamation operations shall be considered as a change to an alternative land use which is subject to approval by the Division.

(a) "Cropland" means land used for the production of adapted crops for harvest, alone or in rotation with grasses and legumes, and includes row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar specialty crops.

(b) "Pastureland" means land which is used for the production of adapted, domesticated forage plants for livestock grazing or occasional hay production. Pastureland maintenance entails cultural inputs such as seeding, irrigation, fertilization, brush control and pest control.

(c) "Rangeland" means land on which plant cover is principally valuable for forage. Except for brush control, management is primarily achieved by regulating the intensity of grazing and season of use.

(d) "Forestry" means use or management of land for the long term production of wood, wood fiber, or wood derived products.

(e) "Residential" means use of land for single and multiple family housing, mobile home parks, and other residential lodgings. Support facilities include, but are not limited to, vehicle parking and open space that directly relate to the residential use.

(f) "Industrial or Commercial" means use of land for:

1. (i) Extraction or transformation of materials for fabrication of products, wholesaling of products or for long term storage of products. This includes all heavy and light manufacturing facilities such as lumber and wood processing, chemical manufacturing, petroleum refining, and fabricated metal products manufacture. Support facilities include, but are not limited to, all rail, road, and other transportation facilities.
2. (ii) Retail or trade of goods or services, including hotels, motels, stores, restaurants, and other commercial establishments. Support facilities include, but are not limited to, parking, storage or shipping facilities.
3. (iii) Developed commercial recreation, including facilities such as amusement parks, athletic or recreational sports facilities, and other intensive use recreational facilities. This designation applies only to lands which are physically developed for intensive recreational use, and does not include adjacent lands which are not physically affected.

(g) "Recreation" means use of land for non-intensive public or private leisure time uses, such as hiking, canoeing, and other undeveloped recreational uses.

(h) "Fish and wildlife habitat" means land used wholly or partially in the production, protection or management of species of fish or wildlife.

(i) "Developed water resources" means use of land for storing water for beneficial uses such as stockponds, irrigation, fire protection, flood control, and water supply.

(j) "Undeveloped land" means land with no current use or level of management. It includes land that has never been developed, or if previously developed, land that has been allowed to return naturally to an undeveloped state or has been allowed to return to forest through natural succession.

(71a) "Liabilities" means obligations to transfer assets or provide services to other entities in the future as a result of past transactions.

(72) "Materially damage the quantity or quality of water" means, with respect to alluvial valley floors, changes in the quality or quantity of the water supplied to subirrigated or flood irrigated areas on alluvial valley floors significant to farming where such changes are caused by surface coal mining and reclamation operations and result in changes that significantly and adversely affect the capability of the alluvial valley floor to support farming.

(73) "Minor revision" means a modification in permit provisions to reflect minor alterations in the location of roads or other facilities within the permit area, minor alterations in the timing or sequencing of mining or reclamation plans approved in accordance with the requirements of these Rules or other minor alterations in surface coal mining and reclamation operations which shall not cause a significant alteration in the permittee's reclamation plan.

(74) "Mulch" means vegetation residues or other suitable materials that aid in soil stabilization and soil moisture conservation, thus providing micro climatic conditions suitable for plant germination and growth.

(75) "Natural hazard areas" means geographic areas in which natural conditions exist which pose, or as a result of surface coal mining operations, may pose a threat to the health, safety or welfare of people, property or the environment, including areas subject to landslides, cave ins, severe wind or soil erosion, frequent flooding, avalanches and areas of unstable geology.

(76) "Net worth" means total assets minus total liabilities and is equivalent to owners' equity.

(77) "No significant recreational, timber, economic or other values incompatible with surface coal mining operations" means those significant values which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on off site areas which could be affected by mining. Those values to be evaluated for their importance include:

(a) Recreation, including hiking, boating, camping, skiing, or other related outdoor activities;

(b) Timber management or silviculture;

(c) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce; and (d) Scenic, historic, archeologic, esthetic, fish, wildlife, plants, or cultural interests.

(78) "Noxious weeds" means species that have been included on official State or county lists of noxious weeds.

(79) "Occupied dwelling" means any building that is currently being used on a regular or temporary basis for human habitation.

(80) "Operator" means any person engaged in surface coal mining and reclamation operations who removes or intends to remove more than 250 tons of coal from the earth or from coal mine waste disposal facilities within 12 consecutive calendar months in any one location. 103(14) (81) "Other minerals" means clay, stone, sand, gravel, metalliferous and nonmetalliferous ores, oil shale and oil extracted from shale by an in situ process, and any other solid material or substances of commercial value excavated in solid form from natural deposits on or in the earth, exclusive of coal and those minerals which occur naturally in liquid or gaseous form. 103(15) (81a) "Other treatment facilities" means any chemical treatments, such as flocculation or neutralization, or mechanical structures, such as, but not limited to, clarifiers or precipitators, that have a point source discharge and are utilized:

1. (i) to prevent additional contributions of dissolved or suspended solids to streamflow or runoff outside the permit area; or (ii) to comply with all applicable State and Federal water-quality laws and regulations.

(82) "Outslope" means the face of the spoil or embankment sloping downward from the highest elevation to the toe.

(83) "Overburden" means for surface coal mining activities, materials of any nature, consolidated or unconsolidated, that overlies a coal deposit, excluding topsoil.

(83a) "Owned or controlled" and "owns or controls" means any one or a combination of the relationships specified in paragraphs (a) and (b) of this definition - (a) (l) Being a permittee of a surface coal mining operation; (2) based on instruments of ownership or voting securities, owning of record in excess of 50 percent of an entity; or

1. (3) having any other relationship which gives one person authority directly or indirectly to determine the manner in which an applicant, an operator, and other entity conducts surface coal mining operations.

(b) The following relationships are presumed to constitute ownership or control unless it can be demonstrated that the person subject to the presumption does not in fact have the authority directly or indirectly to determine the manner in which the relevant surface coal mining operation is conducted:

1. (i) Being an officer or director of an entity;
2. (ii) Being the operator of a surface coal mining operation;
3. (iii) Having the ability to commit the financial or real property assets or working resources of an entity;
4. (iv) Being a general partner in a partnership;
5. (v) Based on the instruments of ownership or the voting securities of a corporate entity, owning of record 10 through 50 percent of the entity; or (vi) Owning or controlling coal to be mined by another person under a lease, sublease or other contract and having the right to receive such coal after mining or having authority to determine the manner in which that person or another person conducts a surface coal mining operation.

(83b) "Parent corporation" means a corporation which owns or controls the applicant.

(84) "Perennial stream" means a stream or part of a stream that flows continuously during all of the calendar year as a result of ground water discharge or surface runoff. The term does not include intermittent stream or ephemeral stream.

(85) "Performance bond" means a surety bond, collateral bond, or self bond or a combination thereof, by which a permittee assures faithful performance of all the requirements of the Act, these Rules, the permit, and the reclamation plan.(86) "Permanent diversion" means a diversion remaining after surface coal mining and reclamation operations are completed which have been approved for retention by the Board and Division and other appropriate State and Federal agencies.

(86a) "Permanent impoundment" means an impoundment which is approved by the Division, and if required, by other State and Federal agencies for retention as part of the post-mining land use.

(87) "Permit" means a permit to conduct surface coal mining and reclamation operations. 103(16) (88) "Permit applicant" means a person applying for a permit. 103(17) (89) "Permit area" means the area of land indicated on the approved map submitted by the operator with his/her application, which area of land shall be covered by the operator's bond as required by the Act and these Rules. The permit boundary, which shall circumscribe the permit area, shall be identified through a complete and detailed legal description as required by Rule 2.03.6. Permit area includes all areas of land which are or will be affected by surface coal mining and reclamation operations during the term of the permit. 103(18) (90) "Permit revision" means a significant alteration of the terms or requirements of a permit issued under the Rules and the Act, including, but not limited to, significant changes in the reclamation plan, and other actions which the Board may by regulation prescribe. "Permit revision" does not include a technical revision as defined in 1.04(136). 103(19) (91) "Permittee" means a person holding a permit. 103(20) (92) "Person" means an individual, partnership, association, society, joint stock company, firm, company, corporation, Indian tribe conducting surface coal mining and reclamation operations outside Indian lands, any other business organization, and any agency, unit or instrumentality of Federal, State, or local government including any publicly owned utility or publicly owned corporation of Federal, State, or local government. 103(21)

(93) "Person having an interest which is or may be adversely affected or person with a valid legal interest" shall include any and all persons.

(93a) "Point of compliance" means any geographic location at which compliance with applicable ground water quality standards established by the Water Quality Control Commission must be attained and where this compliance will be demonstrated by compliance monitoring of the groundwater or by other valid means approved by the Division.

(94) "Precipitation event" means a quantity of water resulting from drizzle, rain, snow, sleet, or hail in a limited period of time. It may be expressed in terms of recurrence interval. As used in these Rules, precipitation event also includes that quantity of water emanating from snow cover as snowmelt in a limited period of time.

(95) "Prime farmland" means land which has been historically used for cropland and that, in accordance with 7 C.F.R. 657, as amended, has the best combination of physical and chemical characteristics of producing food, feed, forage, fiber and oilseed crops, is also available for these uses and as interpreted by the USDA Soil Conservation Service for Colorado.

(96) "Principal shareholder" means any person who is the record or beneficial owner of 10 percent or more of any class of voting stock.

(97) "Probable cumulative impacts" means the expected total qualitative and quantitative effects of surface coal and reclamation operations on the hydrologic regime.

(98) "Probable hydrologic consequence" means the projected result of proposed surface coal mining and reclamation operations which may reasonably be expected to change the quantity or quality of the surface and ground water; the depth to ground water; the surface or ground water flow, timing and pattern; the stream channel conditions; and the aquatic habitat on the permit area and other affected areas.

(99) "Productivity" means the vegetation yield produced by a unit area for a unit of time.

(100) "Property to be mined" means both the surface and mineral estates on and underneath lands within the permit area.

(101) "Public building" means any structure that is owned by a public agency or used principally for public business, meetings or other group gatherings.

(102) "Public Office" means a facility under the direction and control of a governmental entity which is open to public access on a regular basis during reasonable business hours.

(103) "Public park" means an area dedicated or designated by any Federal, State, or local agency for public recreational use, whether or not such use is limited to certain times or days, including any land leased, reserved or held open to the public because of that use.

(103a) "Reasonably available spoil" means spoil and suitable coal mine waste material generated by a re mining operation, or other spoil or suitable coal mine waste material located in the permit area that is accessible and available for use and that when rehandled will not cause a hazard to public safety or significant damage to the environment.

(104) "Recharge capacity" means the ability of the soils and underlying materials to allow precipitation and runoff to infiltrate and reach a zone of saturation.

(105) "Reclamation" means any activity or procedure required to achieve compliance with a reclamation plan approved under 2.05 including any necessary work required for compliance with the Act and these Rules.

(106) "Reclamation plan" means a plan submitted by an applicant in accordance with these Rules and the Act which sets forth a plan for reclamation of the proposed surface coal mining operations pursuant to Rule 2 and Section 34 33 111 of the Act. 103(23) (107) "Recurrence interval" means the interval of time in which a precipitation event is expected to occur once, on the average. For example, the 10 year, 24 hour precipitation event would be that 24 hour precipitation event expected to occur, on the average, once in 10 years.

(108) "Reference area" means a land unit maintained under management approved by the Division for the purpose of measuring vegetation ground cover, productivity and plant species diversity that is produced naturally or by crop production methods. Reference areas must be representative of geology, soil, slope, and vegetation in the permit area as determined by premining inventories.

(108a) "Refuse pile" means a surface deposit of coal mine waste that does not impound water, slurry, or other liquid or semi liquid material.

(109) "Regional Director" means the Director of the Region V Office of Surface Mining or the Regional Director's representative.

(110) "Renewable resource lands" means aquifers and areas for the recharge of aquifers, areas for agricultural or silvicultural production of food and fiber, and pasturelands.

(111) "Road" means a surface right of way for purposes of travel by land vehicles used in coal exploration or surface coal mining and reclamation operations. A road consists of the entire area within the right of way, including the roadbed, shoulders, parking and side area, approach structures, ditches, surface, and such contiguous appendages as are necessary for the total structure. The term does not include public roads, ramps, and routes of travel within or adjacent to the immediate mining pit area or within spoil or coal mine waste disposal areas.

(a) "Haul road" means any road used for the transportation of coal, spoil or coal mine waste.

(b) "Access road" means roads frequently traveled or used for purposes other than the transportation of coal, spoil or coal mine waste, including, but not limited to, roads used for supervision of mining operations, or servicing major facilities including sedimentation or monitoring facilities, or other frequent uses.

(c) "Light-use road" means roads infrequently traveled or used on an intermittent basis for purposes other than transportation of coal, spoil or coal mine waste, including, but not limited to, roads used for monitoring, periodic maintenance of monitoring facilities, or other occasional uses.

(112) "Safety factor" means the ratio of the available shear strength to the developed shear stress or the ratio of the sum of the resisting forces to the sum of the loading or driving forces, as determined by accepted engineering practices.

(113) "Secretary" means the Secretary of the Interior. 103(24) (114) "Sediment" means undissolved organic or inorganic material transported or deposited by water.

(115) "Sedimentation Pond" means an impoundment used as a primary sediment control structure to remove solids from water to meet water-quality standards or effluent limitations before the water leaves the permit area. In accordance with C.R.S. 37-87-114.5, the State Engineer's requirements at C.R.S. 37-87-105 through 37-87-114 are not applicable to those structures designed solely to control sediment or which do not store water. Secondary sedimentation control measures, such as ditches, riprap, check dams, mulches, and other measures to reduce overland flow velocity, reduce runoff volume or trap sediment shall not be considered a sedimentation pond, but may contribute to the sediment control program for a drainage.

(116) "Self-bond" means an indemnity agreement in a sum certain executed by the applicant or by the applicant and any corporate guarantor and made payable to the Division with or without separate surety.

(117) "Significant, environmental harm to land, air or water resources" means:

(a) An environmental harm is an adverse impact on land, air or water resources which resources include, but are not limited to, plant and animal life.

(b) An environmental harm is significant if that harm is appreciable and not immediately reparable.

(118) "Significant forest cover" means an existing plant community consisting predominantly of trees and other woody vegetation. The Secretary of Agriculture shall decide on a case by case basis whether the forest cover is significant within those National Forests west of the 100th meridian.

(119) "Slope" means average inclination surface, measured from the horizontal, generally expressed as a ratio of a unit of vertical distance to a given number of units of horizontal distance (e.g. 5h:1v). It may also be expressed as a percent or in degrees.

(120) "Soil horizon" means the layers of soil parallel or nearly parallel to the land surface. Major soil horizons are defined as the O, A, E, B and C horizons as defined by the U.S.D.A. Soil Conservation Service in the National Soils Handbook.

(121) "Soil survey" means field and related investigation, resulting in a map showing the geographic distribution of different kinds of soils and an accompanying report that describes, classifies and interprets such soils for use. Soil surveys must meet the standards of the National Cooperative Soil Survey.

(122) "Spoil" means overburden that has been removed during surface coal mining operations.

(123) "Stabilize" means to prevent undesirable movement of soil, spoil piles, or areas of disturbed earth by modifying the configuration of the mass, or by otherwise modifying the physical or chemical properties, such as providing a protective surface coating.

(124) "State or local land use plans or programs" means all State, regional, county, municipal or city land use plans which have been formally and officially approved and adopted by the State or local legislative body; however, in the event that there is no plan which meets the above requirements, if a land use plan exists which has not yet been approved and adopted by the State or local legislative body, but has been approved by the appropriate State or local planning agency, then such plan is a "plan or program" for purposes of this definition if it has been given force and effect by the State or local planning officials.

(125) "Steep slope" means any slope of more than 20' or such lesser slope as may be designated by the Board or Division after consideration of soil, climate, and other characteristics of the region. 120(4)(b)

(126) "Subirrigation" means, with respect to alluvial valley floors, the supplying of water to agriculturally useful plants from underneath or from a partially saturated or saturated subsurface zone where water is available for use by those plants. Subirrigation may be identified by:

(a) Diurnal fluctuation of the water table, due to the differences in nighttime and daytime evapotranspiration rates;

(b) Increasing soil moisture from a portion of the root zone down to the saturated zone, due to capillary action;

(c) Mottling the soils in the root zones;

(d) Existence of an important part of the root zone within the capillary fringe or water table of an alluvial aquifer; or (e) An increase in streamflow or a rise in ground water levels, shortly after the first killing frost on the valley floor.

(127) "Substantially disturb" means, for purposes of coal exploration, to impact significantly upon land, air, or water resources by such activities as blasting, removal of significant amounts of vegetation, mechanical excavation, drilling or altering coal or water exploratory holes or wells, construction of roads and other access routes, the placement of permanent structures, excavated earth, or other debris on the surface of land or removal of more than 250 tons of coal.

(128) "Substantial legal and financial commitments in a surface coal mining operation" means significant investments that have been made on the basis of a long term coal contract in power plants, railroads, coal handling, preparation, extraction or storage facilities and other capital intensive activities. An example would be an existing mine, not actually producing coal, but in a substantial stage of development prior to production. Costs of acquiring the coal in place or of the right to mine it without an existing mine, as described in the above example, alone are not sufficient to constitute substantial legal and financial commitments.

(129) "Successor in interest" means any person who succeeds to rights granted under a permit, by transfer, assignment, or sale of those rights. 115(2)

(130) "Surety bond" means an indemnity agreement in a sum certain payable to the State executed by the permittee which is supported by the performance guarantee of a corporation licensed to do business as a surety in Colorado.

(131) "Surface coal mining activities" means those surface coal mining and reclamation operations incident to the extraction of coal from the earth by removing the materials over a coal seam, before removing the coal, by auger coal mining or by recovery of coal from a deposit that is not in its original geologic location.

(132) "Surface coal mining operations" means:

(a) Activities conducted on the surface of lands in connection with a surface coal mine or activities subject to the requirements of Section 34 33 121 of the Act and Rule 4 which involve surface operations and surface impacts incident to an underground coal mine. Such activities include excavation for the purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop removal, box cut, open pit, and area mining, removal of coal from coal mine waste disposal facilities, the use of explosives and blasting, and the use of in situ distillation or retorting, leaching or other chemical or physical processing, and the cleaning, concentrating, or other processing or preparation, loading of coal for interstate commerce at or near the mine site; except that such activities do not include any of the following: Coal exploration subject to Section 34 33 117 of the Act and 2.02, the exploration and extraction of natural petroleum in a liquid or gaseous state by means of wells or pipe, or the extraction of geothermal resources; and (b) The areas upon which such activities occur or where such activities disturb the natural land surface. Such areas shall also include any adjacent land the use of which is incidental to any such activities, all lands affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of such activities and for haulage, excavations, workings, impoundments, dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are sited structures, facilities, or other property or materials on the surface, resulting from or incident to such activities.

(133) "Surface coal mining and reclamation operations" means surface coal mining operations and all activities necessary and incident to the reclamation of such operations. 103(25) (134) "Surface water" means water that is either flowing or standing on the surface of the earth.

(135) "Suspended solids or nonfilterable residue" (expressed as milligrams per liter), means organic or inorganic materials carried or held in suspension in water which are retained by a standard glass fiber filter in the procedure outlined by the Environmental Protection Agency's regulations for waste water and analyses (40 CFR 136).

(135a) "Tangible net worth" means net worth minus intangibles such as goodwill and rights to patents or royalties.

(136) "Technical revision" means a minor change, including incidental permit boundary revisions, to the terms or requirements of a permit issued under these Rules, which change shall not cause a significant alteration in the operator's reclamation plan. The term includes, but is not limited to, increases in coal production, reduction or termination of approved environmental monitoring programs, or design changes for regulated structures or facilities. 103(27) (137) "Temporary diversion" means a diversion of a stream or overland flow which is used during coal exploration or surface coal mining and reclamation operations and not approved by the Division to remain after reclamation as part of the approved postmining land use.

(137a) "Temporary impoundment" means an impoundment used during surface coal mining and reclamation operations, but not approved by the Division to remain as part of the approved post- mining land use.

(138) "Ton" means 2000 pounds avoirdupois (.90718 metric ton).

(139) "Toxic-forming materials" means earth materials or wastes which, if acted upon by air, water, weathering, or microbiological processes, are likely to produce chemical or physical conditions in soils or water that are detrimental to biota or uses of water.

(140) "Toxic mine drainage" means water that is discharged from active or abandoned mines or other areas affected by coal exploration or surface coal mining and reclamation operations, which contains a substance that through chemical action or physical effects is likely to kill, injure, or impair biota commonly present in the area that might be exposed to it.

(141) "Transfer, assignment, or sale of rights" means a change in ownership or other effective control over the right to conduct surface coal mining and reclamation operations under a permit issued by the Division.

(142) "Unconsolidated stream laid deposits holding streams" means, with respect to alluvial valley floors, all flood plains and terraces located in the lower reaches of valleys which contain perennial or other streams with channels that are greater than 3 feet in bankfull width and greater than 0.5 feet in bankfull depth.

(143) "Underground development waste" means waste rock mixtures of coal, shale, claystone, siltstone, sandstone, limestone, or related materials that are excavated, moved, and disposed of during development and preparation of areas incident to underground mining activities.

(144) "Underground mining activities" means a combination of:

(a) Surface operations incident to underground extraction of coal or in situ processing, such as construction, use, maintenance, and reclamation of roads, above ground repair areas, storage areas, processing areas, shipping areas, areas upon which are sited support facilities including hoist and ventilating ducts, areas utilized for the disposal and storage of waste, and areas on which materials incident to underground mining operations are placed; and (b) Underground operations such as underground construction, operation, and reclamation of shafts, adits, underground support facilities, in situ processing, and underground mining, hauling, storage, and blasting, subject to review for surface and hydrologic impacts in accordance with Rules 2 and 4.

(145) "Undeveloped rangeland" means, for purposes of alluvial valley floors, lands where the use is not specifically controlled and managed.

(146) "Unwarranted failure to comply" means the failure of a permittee to (1) prevent the occurrence of any violation of his permit or any requirement of these Rules due to indifference, lack of diligence, or lack of reasonable care or (2) the failure to abate any violation of such permit or this article due to indifference, lack of diligence, or lack of reasonable care. 103(28) (147) "Upland areas" means, with respect to alluvial valley floors, those geomorphic features located outside the flood plain and terrace complex, such as isolated higher terraces, alluvial fans, pediment surfaces, landslide deposits, and surfaces covered with residuum, mud flows or debris flows, as well as highland areas underlain by bedrock and covered by residual weathered material or material deposited by sheetwash, rillwash, or wind.

(148) "Valley fill" means a fill structure consisting of any material other than coal waste and organic material that is placed in a valley where side slopes of the existing valley measured at the steepest point are greater than 20or the average slope of the profile of the valley from the toe of the fill to the top of the fill is greater than 10 (149) "Valid existing rights" means:

(a) Except for haul roads,

1. (i) Those property rights in existence on August 3, 1977, that were created by a legally binding conveyance, lease, deed, contract or other document which authorizes the applicant to produce coal by surface coal mining operations; and (ii) The person proposing to conduct surface coal mining operations on such lands either:
   1. (A) Had been validly issued, on or before August 3, 1977 all State and Federal permits necessary to conduct such operations on those lands, or (B) Can demonstrate to the Division that the coal is both needed for, and immediately adjacent to, an on going surface coal mining operation for which all permits were obtained prior to August 3, 1977;

(b) For haul roads, "valid existing rights" means:

1. (i) A recorded right of way, recorded easement or a permit for a coal haul road recorded as of August 3, 1977, or (ii) Any other road in existence as of August 3, 1977.

(150) "Violation notice" means any written notification from a governmental entity of a violation of law, whether by letter, memorandum, legal or administrative pleading, or other written communication.

(151) "Water table" means the upper surface of a zone of saturation, where the body of ground water is not confined by an overlying impermeable zone.

(152) "Willful violation" means an act or omission which violates the Act, these Rules, P. L. 95 87, or 30 CFR Chapter VII, or any permit condition committed by a person who intends the result which actually occurs.

(153) "Willfully" means that, with respect to individual civil penalties, that an individual acted:

(a) Either intentionally, voluntarily or consciously; and (b) With intentional disregard or plain indifference to legal requirements in authorizing, ordering or carrying out a corporate permittee's action or omission that constituted a violation, failure or refusal to comply with any regulatory requirements or order of the Board.

1.05 APPLICABILITY

1.05.1 General. 129

(1) These Rules shall apply to all coal exploration and surface coal mining and reclamation operations, except:

(a) The extraction of coal by a landowner for his or her own non commercial use from land owned or leased by him or her. Non commercial use does not include the extraction of coal by one unit of an integrated company or other business or non profit entity which uses the coal in its own manufacturing or power plants;

(b) The extraction of coal as an incidental part of Federal, State or local government financed highway or other construction; however, any person extracting coal incident to government financed highway or other construction who extracts more than 250 tons of coal shall maintain, on the site of the extraction operation and available for inspection, appropriate documents for the construction. 129(1)(c)

(2) The Division may on its own initiative and shall, within 10 working days of a request from any person who intends to conduct surface coal mining operations, make a written determination whether the operation is exempt under this rule. The Division shall give reasonable notice of the request to interested persons. Before the time a determination is made, any person may submit, and the Division shall consider, any written information relevant to the determination. A person requesting that an operation be declared exempt shall have the burden of establishing the exemption. If a written determination of exemption is reversed through subsequent administrative or judicial action, any person who, in good faith, has made a complete and accurate request for an exemption and relied upon the determination, shall not be cited for violations which occurred prior to the date of the reversal.

1.05.2 Public Agencies, Public Utilities, and Public Corporations. 127

Any agency, unit, or instrumentality of the State or local government, including any publicly owned utility or publicly owned corporation of State or local government, which proposes to engage in surface coal mining operations, which are subject to the requirements of the Act and these Rules, shall comply with the provisions of this Act and these Rules.

1.06 PETITIONS TO INITIATE RULEMAKING 102

(1) Any person may petition the Board to initiate a proceeding for the issuance, amendment or repeal of any Rule under the Act. The petition shall be submitted to the Mined Land Reclamation Board; Department of Natural Resources; 1313 Sherman Street, Room 215; Denver, Colorado 80203.

(2) The petition shall be a concise statement of the facts, technical justification and law which require issuance, amendment or repeal of a Rule under the Act and shall indicate whether the petitioner desires a public hearing.

(3) Upon receipt of the petition, the Board shall determine if the petition sets forth facts, technical justification and law which may provide a reasonable basis for issuance, amendment or repeal of the Rules. Amendment, repeal or revision of the Federal Surface Mining Control and Reclamation Act (P.L. 95 87) or regulations promulgated thereto shall be considered to provide a reasonable basis. The Board shall conduct an investigation or take other action to determine whether the petition shall be granted and may hold a hearing if appropriate. If the Board determines that the petition has a reasonable basis, a notice shall be published in the newspaper of the largest circulation for the State and the monthly mailing list seeking comments from the public on the proposed change.

(4) Within 90 days from receipt of the petition, the Board shall issue a written decision either granting or denying the petition. The Board's decision shall constitute the final decision.

(a) If the petition is granted, the Board shall initiate a rulemaking proceeding.

(b) If the petition is denied, the Board shall notify the petitioner in writing, setting forth the reasons for denial.

1.07 NOTICE OF CITIZEN SUITS 135

(1) Any person having an interest which is or may be adversely affected may commence a civil action on his or her own behalf to compel compliance with the provisions of these Rules and the Act according to the provisions set forth in Section 34 33 135 of the Act.

(2) A person who intends to initiate a civil action on his or her own behalf shall give notice of intent to do so, in accordance with 1.07. 135(2)(a), (b)

(3) Notice shall be given by certified mail to the Administrator and Attorney General.

(4) Notice shall be given by certified mail to the alleged violator, if the complaint alleges a violation of the Act or any Rule, order or permit issued under the Act.

(5) Service of notice under 1.07 is complete upon mailing to the last known address of the person being notified.

(6) A person giving notice regarding an alleged violation shall state, to the extent known:

(a) Sufficient information to identify the provision of the Act, Rule, order or permit allegedly violated;

(b) The act or omission alleged to constitute a violation;

(c) The name, address and telephone numbers of the person or persons responsible for the alleged violation;

(d) The date, time and location of the alleged violation;

(e) The name, address and telephone number of the person giving notice; and (f) The name, address and telephone number of the legal counsel, if any, for the person giving notice.

(7) A person giving notice of an alleged failure by the Board or Division to perform a mandatory act or duty under the Act shall state, to the extent known:

(a) The provision of the Act containing the mandatory act or duty allegedly not performed;

(b) Sufficient information to identify the omission alleged to constitute the failure to perform a mandatory act or duty under the Act;

(c) The name, address and telephone number of the person giving notice; and (d) The name, address and telephone number of the legal counsel, if any, for the person giving notice.

1.08 AVAILABILITY OF RECORDS

(1) Records required by these Rules and the Act except those records of a confidential, proprietary nature as determined consistent with the provisions of the Rules, shall be made available to the public at the Division's office.

(2) Other records or documents, not containing confidential, proprietary information as determined consistent with the applicable provisions of these Rules, in the possession of the Division or Board may be requested in accordance with both the Act and these Rules, and Section 24 6 101, et seq., C.R.S., known as the Colorado Sunshine Law.

1.09 COMPUTATION OF TIME

(1) Except as otherwise provided, computation of time under these Rules is based on calendar days.

(2) In computing any period of prescribed time, the day on which the designated period of time begins is not included. The last day of the period is included unless it is a Saturday, Sunday or legal holiday on which the Board or Division is not open for business, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.

(3) Intermediate Saturdays, Sundays and legal holiday are excluded from the computation when the period of prescribed time is 7 days or less.

1.10 RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS

1.10.1 Objective.

The objective is to establish methods which will ensure that each employee of the Division who performs any function or duty under the Act does not have a direct or indirect financial interest in any coal exploration, surface coal mining and reclamation operation, or underground mining activity. 122(9)

1.10.2 Responsibilities.

(1) Division employees performing any duties or functions under the Act and these Rules shall:

(a) File a fully completed statement of employment and financial interest 120 days after these regulations become effective or upon entrance to duty, and annually thereafter on February 1 of each year, except that new employees are not required to file an annual statement on the subsequent annual filing date, if this date occurs within two months after their initial statement was filed;

(b) Have no direct or indirect financial interest in surface coal mining and reclamation operations and coal exploration; and (c) Comply with directions issued by persons responsible for approving each statement and comply with directives issued by those persons responsible for ordering remedial action.

(2) The Board members performing any duties or function under the Act and these rules shall:

(a) File a fully completed statement of employment and financial interest upon entrance to duty, and annually thereafter on February 1 of each year, except that new Board members are not required to file an annual statement on the subsequent annual filing date, if this date occurs within two months after their initial statement was filed, and (b) Recuse themselves from proceedings which may affect their direct or indirect financial interests.

(3) The Administrator shall:

(a) Provide advice, assistance, and guidance to all State employees required to file statements pursuant to this Rule; and inform such employees of the name, address and telephone number of other persons whom they may contact for advice and counseling;

(b) Promptly review the statement of the employee and financial interests and supplements, if any, filed by each employee, to determine if the employee has correctly identified those listed employment and financial interests which constitute a direct or indirect financial interest in surface coal mining and reclamation operations, or underground mining activities or coal exploration;

(c) Resolve prohibited financial interest situations by ordering or initiating remedial action, advising the employee that remedial action which will resolve the prohibited interest is required within 90 days, or by reporting the violations to the Executive Director;

(d) Certify on each statement that review has been made, that prohibited financial interests, if any, have been resolved, and that no other prohibited interests have been identified from the statement;

(e) Submit to the Executive Director the initial listing and the subsequent annual listing of positions as required in this Rule;

(f) Furnish a blank statement 45 days in advance of the filing date established in this Rule to each employee required to file a statement; and (g) Undertake such other activities as may be required to assure full compliance with applicable conflict of interest regulations promulgated by the Office of Surface Mining.

1.10.3 Penalties.

(1) Any person who knowingly violates the provisions of Section 34 33 122(9), C.R.S., as adopted in 1.10.2(2) of these Rules, shall, upon conviction, be punished by a fine of not more than $2,500, or by imprisonment of not more than one year, or both.

(2) Any Division employee who fails to file the required financial interest statement will be considered in violation of the Act and these Rules and will be subject to removal from his or her position, if 90 days after an employee is notified by the Administrator to take remedial action, the employee is not in compliance with the requirements of the Act and these Rules.

1.10.4 Who Shall File.

(1) Board members and all employees who perform any function or duty under the Act shall file a statement of employment and financial interests.

(2) The Administrator shall prepare and submit to the Executive Director, an initial listing of positions that do not involve performance or any functions or duties under the Act within 60 days of the effective date of these Rules.

(3) The Administrator shall annually review and update this listing. For monitoring and reporting reasons, the listing must be submitted to the Executive Director and must contain a written justification for inclusions of the positions listed. Proposed revisions or a certification that revision is not required shall be submitted to the Executive Director by no later than June 29 of each year. The Administrator may revise the listing by the addition or deletion of positions at any time he or she determines such revisions are required to carry out the purpose of the law or these Rules.

1.10.5 Where to File.

The Administrator shall file his or her statement with the Executive Director. All other employees shall file their statement with the Administrator.

1.10.6 What to Report.

(1) Each employee shall report all information required on the statement of employment and financial interests of the employee, his or her spouse, minor children, or other relatives who are full time residents of the employee's home. The report shall be on OSM Form 705 1. The statement consists of three major parts.

(a) A listing of all financial interests, including employment, security, real property, creditor and other financial interests held during the course of the preceding year;

(b) A certification that none of the listed financial interests represent a direct or indirect financial interest in an underground or surface coal mining operation except as specifically identified and described by the employee as part of the certificate; and (c) A certification by the reviewer that the form was reviewed, that prohibited interests have been resolved, and that no other prohibited interests have been identified from the statement.

(2) An employee is expected to:

(a) Have complete knowledge of his or her personal involvement in business enterprises such as a sole proprietorship and partnership, his or her outside employment and the outside employment of the spouse and other covered relatives; and (b) Be aware of the information contained in the annual financial statement or other corporate or business reports routinely circulated to investors or routinely made available to the public.

(3) The exceptions shown in the employee certification of the form must provide enough information for the Director of the Division to determine the existence of a direct or indirect financial interest. Accordingly, the exceptions should:

(a) List the financial interests;

(b) Show the number of shares, estimated value or annual income of the financial interests; and (c) Include any other information which the employee believes should be considered in determining whether or not the interest represents a prohibited interest.

1.10.7 Gifts and Gratuities.

(1) Employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or any other thing of monetary value, from a coal company which:

(a) Conducts or is seeking to conduct operations or activities that are regulated by the Division; or (b) Has interests that may be substantially affected by the performance or non performance of the employee's official duty.

(2) The prohibitions of this Rule do not apply in the context of obvious family or personal relationships (such as those between parents, children, or spouse of the employee, and the employee) when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors. An employee may accept:

(a) Food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting where an employee may properly be in attendance; and (b) Unsolicited advertising or promotional material, such as pens, pencils, note pads, calendars and other items of nominal value.

1.10.8 Resolving Prohibited Interests.

(1) Remedial action may include:

(a) If an employee has a prohibited financial interest, the administrator shall advise the employee that remedial action which will resolve the prohibited interest is required within 90 days, (b) Reassignment of the employee to a position which performs no function or duty under the Act, (c) Divestiture of the prohibited financial interest, or (d) Other appropriate action which either eliminates the prohibited interest or eliminates the situation which creates the conflict.

(2) If 90 days after an employee is notified to take remedial action, that employee is not in compliance with the requirements of the Act and these Rules, the Administrator shall report the facts of the situation to the Executive Director. The failure of the employee to comply may result in the suspension or termination of the employee.

1.10.9 Appeals Procedure.

(1) Employees have the right to appeal an order for remedial action and shall have 30 days to exercise this right before disciplinary action is initiated.

(2) Employees other than the Administrator may file their appeal, in writing, through established procedures of the State Department of Personnel.

(3) The Administrator may file his appeal in writing, with the Executive Director who will refer it to the Attorney General.

1.11 REQUESTS TO THE BOARD 120(6)

Any additional criteria, mining or reclamation measures, or other conditions which the Division requires the operator to meet, satisfy, or undertake in connection with the issuance, revision, or transfer of permits or in connection with the conduct of a surface coal mining operation shall be based upon good cause shown by the Division, taking into consideration the specific conditions at the site, and shall bear a reasonable relationship to the purposes and provisions of these Rules. Any applicant or operator shall have the right, at any regular meeting of the Board, upon proper notice, to seek the informal opinion of the Board concerning any request or requirement of the Division for such additional criteria, mining or reclamation measures, or other conditions, and such informal opinion of the Board shall not be binding upon any of the parties.

1.12 WATER RIGHTS 136

Nothing contained in these Rules shall be construed to affect or impair the rights and obligations attendant upon the ownership of water rights under Colorado Water law.

1.13 LIMITATION ON THE EFFECT OF REGULATIONS REQUIRED BY FEDERAL LAW, RULES, OR

REGULATIONS WHICH BECOME INEFFECTIVE Any Rule or Regulation promulgated by the Board which is required by a Federal law, rule, or regulation shall become repealed and shall not be enforced when said Federal law is repealed or said Federal rule or regulation is deleted or withdrawn. Any provision of a permit issued under these Rules, that is required by any rule of the Board which is repealed in accordance with this provision shall not be enforceable. The repeal of such Rule or Regulation shall become effective ninety days after publication of the repeal in the Federal Register but will be subject to a rulemaking hearing by the Board as set forth in Article 4 of Title 24, C.R.S.

1.14 DECLARATORY ORDERS (C.R.S., 24 4 105)

(1) Any person having an interest which is or may be adversely affected or person with a valid legal interest, as defined in Rule 1.04 (92) and (93), may petition the Board for declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provision or of any rule or order of the Board.

(2) The petition must be submitted, at a minimum, 10 days prior to the Board meeting at which it is to be considered. At the regularly scheduled Board meeting, the Board will determine in its discretion and without notice to petitioner, whether to rule upon any such petition. If the Board determines that it will not rule upon such a petition, the Board shall promptly notify the petitioner of its action and state the reasons for such action.

(3) In determining whether to rule upon a petition filed pursuant to this rule, the Board will consider the following matters, among others:

(a) Whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to petitioner of any statutory provision or rule or order of the Board.

(b) Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Board or a court involving one or more of the petitioners.

(c) Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Board or a court, but not involving any petitioner.

(d) Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.

(e) Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to Rule 57, Colo. R. Civ. P., which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule or order in question.

(4) Any petition filed pursuant to this rule shall set forth the following:

(a) The name and address of the petitioner and whether the petitioner is a permittee pursuant to the Colorado Surface Coal Mining Reclamation Act.

(b) The statute, rule or order to which the petition relates.

(c) A concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner.

(5) If the Board determines that it will rule on the petition, it will initiate proceedings on the petition no later than the next regularly scheduled meeting and the following procedures shall apply:

(a) The Board may, without further notice, rule upon the petition based solely upon the facts presented in the petition. In such a case, any ruling of the Board will apply only to the extent of the facts presented in the petition and any amendment to the petition.

(b) The Board may order the petitioner to file a written brief, memorandum or statement of position.

(c) The Board may set the petitioner, upon due notice to petitioner, for a non evidentiary hearing.

(d) The Board may request the petitioner to submit additional facts, in writing. In such event, such additional facts will be considered as an amendment to the petition.

(e) The Board may take administrative notice of facts pursuant to the Administrative Procedure Act (C.R.S. 24 4 105(8)) and may utilize its experience, technical competence and specialized knowledge in the disposition of the petition.

(f) If the Board rules upon the petition without a hearing, it shall within ten working days notify the petitioner of its decision by deposit in the mail.

(g) The Board may, in its discretion, set the petition for hearing at the next regularly scheduled Board meeting, upon due notice to petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The notice to the petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the Board intends to inquire. For the purpose of such a hearing, to the extent necessary, the petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the Board to consider.

(6) The parties to any proceeding pursuant to this rule shall be the Division, Board and the petitioner. Any other person may seek leave of the Board to intervene in such a proceeding, and leave to intervene will be granted at the sole discretion of the Board. A petition to intervene shall set forth a concise statement of the facts necessary to demonstrate the nature of its position, and the manner in which the statute, rule or order in question does or does not apply to the petitioner.

(7) Any declaratory order or other order disposing of a petition pursuant to this rule shall constitute agency action and subject to judicial review pursuant to C.R.S., 24 4 106 and C.R.S., 34 33 128.

1.15 GUIDELINES

1.15.1 General.

The Division may develop and use guidelines from time to time in accordance with this section. The guidelines shall be suggestions only, and may be prepared to assist permittees and applicants in complying with the Act and Regulations adopted thereunder. The guidelines shall not be binding on the permittees or consultants. The procedure set forth below for adoption of guidelines shall apply to new guidelines and to amendments to previously adopted guidelines.

1.15.2 Subject Matter.

Guidelines may be published regarding any matter for which an ambiguity or insufficient specificity exists either in the Act or in the Regulations adopted thereunder, or regarding any matter in which the Division or the Board may exercise discretion in accordance with the Act and Regulations adopted thereunder.

1.15.3 Adoption.

The Division shall develop guidelines as follows:

(1) The Division shall prepare a mailing list of persons to receive notice of proposed guidelines. In preparing the mailing list, the Division shall request a positive indication of interest in receiving notices of proposed guidelines from all persons who are on the mailing list to receive notices of Board meetings and agendas, persons who are on the operator's list maintained by the Division, appropriate State and Federal agencies and local governmental bodies, municipalities, regional planning commissioners, boards of county commissioners, county planning agencies, sewage and water treatment authorities, water conservancy and water conservation districts. In addition, all other persons who request that they receive notices of proposed guidelines shall be on the list.

(2) Notice of proposed guidelines shall be given to all persons who are on the mailing list prepared in accordance with 1.15.3(1), above.

(3) The notice shall contain the full text of the proposed guidelines or changes thereto and shall further indicate that written or oral comments will be accepted for a period of 60 days following mailing of the notice in accordance with this section.

(4) The Division shall inform the Board of any proposed guidelines at the next meeting of the Board following mailing of notice of the proposed guidelines in accordance with this section.

(5) The Division shall consider all comments and questions raised during the comment period.

(6) The Division may then prepare final guidelines and shall notify all persons who have submitted comments regarding the proposed guidelines of adoption. This notice shall contain the full text of the guidelines as adopted.

1.15.4 Use of Guidelines.

(1) The guidelines as adopted may be used by permittees and applicants as non binding guidance, suggestions or recommendations regarding procedures or information which is acceptable to the Division regarding compliance with the Act and Regulations adopted thereunder. The guidelines shall further be non binding interpretations by the Division regarding ambiguities in the Act and Regulations adopted thereunder, or in areas in which the Division has discretion regarding compliance with the Act and Regulations adopted thereunder.

(2) An operator shall be free to demonstrate compliance with the Act and Regulations adopted thereunder using procedures or information or an interpretation of the Act and Regulations different from that set forth in guidelines.

RULE 2 PERMITS

2.01 GENERAL REQUIREMENTS

2.01.1 Scope.

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.

2.01.2 General Requirements for Existing Operations. 109(1),(2)

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.

2.01.3 General Requirements for Permits for All Surface Coal Mining and Reclamation Operations. 109(1),(2)

(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.

(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) 2.01.4 Permit 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)

2.01.5 Permit 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)

1. (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)

2.01.6 Permit Fees. 110(1)

(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.

2.02 GENERAL 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

2.02.2 Exploration 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. 117(1)(a) (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(127). 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 8 101 et

1. 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.

2.02.3 General Requirements: Exploration Involving Removal of More Than 250 Tons of Coal. 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 shall, prior to conducting the exploration, obtain the written approval of the Board or Division, in accordance with the following: 117(4),(5)

(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:

1. (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. 1531 et seq .) or the Nongame, Endangered or Threatened Species Conservation Act (Section 33 8 101 et 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;
2. (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;
3. (iii) An estimated timetable for conducting and completing each phase of the exploration and reclamation;
4. (iv) The estimated amounts of coal to be removed and a description of methods to be used to determine those amounts;
5. (v) A description of the measures to be used to comply with the applicable requirements of 4.21.
6. (vi) 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 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.

(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.

2.02.4 Applications: Approval or Disapproval of Exploration Involving Removal of More Than 250 Tons of Coal.

(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 8 101 et 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.

(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.

2.02.5 Applications: Notice and Hearing for Exploration Involving Removal of More Than 250 Tons of Coal.

(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).

2.02.6 General 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:

1. (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.
2. (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)

2.02.7 Sale 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:

1. (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;
2. (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.

2.02.8 Public 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.

2.03 APPLICATION FOR PERMIT FOR SURFACE COAL MINING AND RECLAMATION

OPERATIONS: MINIMUM REQUIREMENTS FOR LEGAL, FINANCIAL, COMPLIANCE AND RELATED INFORMATION.

2.03.1 Objective.

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. 110(1)

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

2.03.3 Format 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, 1015 Fifteenth Street, NW, Washington, D.C. 20036. 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.

2.03.4 Identification of Interests.

Each application shall contain the following information, except that the submission of a social security number is voluntary. 110(1),(2)

(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, as applicable, social security number and employer identification number of the:

(a) Applicant;

(b) Applicant's resident agent; and (c) Person who will pay the abandoned mine land reclamation fee.

(3) For each person who owns or controls the applicant under the definition of "owned or controlled" and "owns and controls" in 1.04(83a), as applicable:

(a) The person's name, address, social security number and employer identification number;

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

(c) 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;

(d) Each additional name and identifying number, including employer identification number, Federal or State permit number, and MSHA number with date of issuance, under which the person owns or controls, or previously owned or controlled, a surface coal mining and reclamation operation in the United States within the five years preceding the date of the application; and (e) The application number or other identifier of, and the regulatory authority for, any other pending surface coal mining operation permit application filed by the person in any state in the United States.

(4) For any surface coal mining operation owned or controlled by either the applicant or by any person who owns or controls the applicant under the definition of "owned or controlled" and "owns and controls" in 1.04(83a), the operation's:

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

(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: 110(1),(2) (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; 110(2)(b)(I)

(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 purchaser of record under a real estate contract of the coal to be mined; 110(2)(b)(II)

(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; 110(2)(b)(III)

(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 sections, 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 applicant shall submit the information required by 2.03.4 and by 2.03.5.

2.03.5 Compliance Information. Each application shall contain:

(1) A statement of whether the applicant, any subsidiary, affiliate, or persons controlled by or under common control with the applicant has: 110(2)(f)

(a) 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 (b) Forfeited a mining bond or similar security deposited in lieu of bond.

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

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

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

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

(d) The date, location, and type of any administrative or judicial proceedings initiated concerning the suspension, revocation or forfeiture; and (e) The current status of these proceedings.

(3) 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: 114(3) (a) 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;

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

(c) 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;

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

(e) The actions, if any, taken by the applicant to abate the violation; and (f) The final resolution of any notice of violation.

(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.

2.03.6 Right 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)

2.03.7 Relationship 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 that the proposed permit area should not be included within an area designated, or under study for designation, as unsuitable for surface coal mining operations because he or she 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, the application shall contain information supporting such an assertion.

(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 dwelling, the application shall contain the written waiver of the owner of the dwelling which states that the owner and signator 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. 114(2)(g)(v)

2.03.8 Permit 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.

2.03.9 Personal 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.

2.03.10 Identification 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.

2.03.11 Identification 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)

2.03.12 Newspaper 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)

2.04 APPLICATION FOR PERMIT FOR SURFACE OR UNDERGROUND MINING ACTIVITIES

MINIMUM REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES

2.04.1 Objectives.

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

2.04.2 Responsibilities.

(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)

2.04.3 General Requirements: Site Description and Land Use Information. 110(2)

(1) Each permit application shall include a description of the existing, premining 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 premining 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:

1. (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.

2.04.4 Cultural 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 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 2.04.5 and 2.04.7, and conform to the following: 110(2)(k) 110(2)(l)

(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 by the Division, to the extent that this data is available from an appropriate Federal or State agency.

(b) 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.

(c) 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)

1. (o) 110(2)(p), 110(7)
2. (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;
3. (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:

1. (A) Location of subsurface water zones, if encountered;
   1. (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;
   2. (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;
   3. (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.
2. (ii) Borehole spacing and physical and chemical analyses of core samples shall be determined in consultation with the Division.
3. (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.
4. (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 1.08 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 other coal seams, 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 2.10 which shows: 110(2)(o) 110(2)(p), 110(7)

1. (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;
2. (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;
3. (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:
   1. (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;
   2. (B) The location of subsurface water if encountered;
   3. (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;
   4. (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.
4. (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:
   1. (A) The location of subsurface water, if encountered, and the location of where subsurface water will be exposed at the face up area;
   2. (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;
   3. (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;
   4. (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.
5. (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:
   1. (A) A description of near surface strata beneath the disturbed area;
   2. (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.

2.04.7 Hydrology 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)

1. (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;
2. (ii) The lithology and thickness of the aquifers;
3. (iii) The seasonal quantity and quality of the water within each aquifer;
4. (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:
   1. (A) Total dissolved solids or specific conductance corrected to 25° C;
   2. (B) pH;
   3. (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:

1. (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:
   1. (A) Total dissolved solids or electrical conductivity corrected to 25 degrees centigrade (specific conductance);
   2. (B) Total suspended solids in milligrams per liter;
   3. (C) Acidity;
   4. (D) pH;
   5. (E) Total and dissolved Iron, in milligrams per liter;
   6. (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)

2.04.8 Climatological 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.

2.04.9 Soils Resource Information. 110(8)

(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:

1. (i) pH;
2. (ii) Salt hazard (electrical conductivity);
3. (iii) Sodium Absorption Ratio or exchangeable sodium percentage;
4. (iv) Texture;
5. (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:

1. (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.

2.04.10 Vegetation 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).

2.04.11 Fish 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.

2.04.12 Prime 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. Soil Conservation Service, shall determine the nature and extent of the required prime farmland investigation. 110(2)(q) 111(1)(b)(II) (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. Soil Conservation Service; or (g) Other factors as determined by the Secretary of Agriculture 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. Soil 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. Soil Conservation Service, the applicant shall submit a request for negative determination for nondesignated land with the permit application establishing compliance with 2.04.12(2).

2.04.13 Annual 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, text, 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 topsoiled 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 seedmixes should be indicated, and seedtags, 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.

2.05 APPLICATION FOR PERMIT FOR SURFACE OR UNDERGROUND MINING ACTIVITIES

MINIMUM REQUIREMENTS FOR OPERATION AND RECLAMATION PLANS

2.05.1 Objectives.

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)

2.05.2 Operation 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)

2.05.3 Operation 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: 111(1)(a) 111(1)(e)

(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:

1. (i) (A) Location;
   1. (B) Plans of the structure which describe its current condition;
   2. (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.
2. (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:
   1. (A) Design specifications for the modification or reconstruction of the structure to meet the requirements of these Rules;
   2. (B) A construction schedule which shows dates for beginning and completing interim steps and final reconstruction;
   3. (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:

1. (i) Specifications for each road width, road gradient, road surface, road cut, fill embankment, culvert, bridge, drainage ditch, and drainage structure.
2. (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(1)(e), 4.03.1(3)(d), 4.03.2(1)(e), or 4.03.2(3)(d).
3. (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).
4. (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).
5. (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:
   1. (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.
6. (vi) Drawings and specifications for any stream fords proposed for use as temporary construction routes.
7. (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.

1. (i) Each general plan shall:
   1. (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.
   2. (B) Contain a description, map, prepared according to 2.10, and cross section of the structure and its location;
   3. (C) Contain preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;
   4. (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.
2. (ii) Each detailed design plan for a structure shall:
   1. (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.
   2. (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;
   3. (C) Describe the operation and maintenance requirements for each structure; and (D) Describe the timetable and plans to remove each structure, if appropriate.
3. (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
   1. 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).
4. (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).
5. (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.
6. (vi) All impoundments meeting the Class B or Class C criteria for dams in the U.S. Department of Agriculture, Soil 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).
7. (vii) Each plan for an impoundment which meets the Class B or Class C criteria in U.S. Department of Agriculture, Soil 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)

1. (i) Types and approximate amounts of explosives to be used for each type of blasting operation to be conducted;
2. (ii) A plan for recording and retention of the following during blasting:
   1. (A) Drilling patterns, including size, number, depths, and spacing of holes;
   2. (B) Charge and packing of holes;
   3. (C) Types of fuses and detonation controls; and (D) Sequence and timing of firing holes.
3. (iii) Description of blasting warning and site access control equipment and procedures;
4. (iv) Description of types, capabilities, sensitivities, and locations of use of any blast monitoring equipment and procedures proposed to be used;
5. (v) Description of plans for recording and reporting to the Division the results of preblasting surveys, if required;
6. (vi) Description of unavoidable hazardous conditions for which deviations from the blasting schedule will be needed under 4.08.4(2);
7. (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)

1. (i) The character of bedrock and any adverse geologic conditions in the disposal area;
2. (ii) A survey identifying all springs, seepage and ground water flow observed or anticipated during wet periods in the area of the disposal site;
3. (iii) A survey of the potential effects of subsidence of the subsurface strata due to past and future mining operations;
4. (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:

1. (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 Processing Waste.

A narrative explaining the construction, modification, use, maintenance, removal, and reclamation of coal processing and non-coal waste removal, handling, storage, transportation and disposal areas and structures in the permit area in accordance with Sections 4.10 and 4.11 including appropriate maps, which meet the requirements of 2.10, explaining the location of each source of waste, waste storage area, and waste disposal facility. 111(1)(e) 111(1)(l) 111(1)(m) (a) Each application shall contain a general plan and detailed design plan for each coal mine waste and non coal processing waste bank, dam, or embankment proposed to be constructed within the permit area.

1. (i) Each general plan shall:
   1. (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;
   2. (B) Contain a description, map, prepared according to 2.10, and cross section of the structure and its location;
   3. (C) Contain preliminary hydrologic and geologic information required to assess the hydrologic impact of the structure;
   4. (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.
2. (ii) Each detailed design plan for a structure shall:
   1. (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;
   2. (B) Describe the operation and maintenance requirements for each structure;
   3. (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.
3. (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
   1. 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).
4. (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).
5. (v) All impoundments meeting the Class B or Class C criteria for dams in the U.S. Department of Agriculture, Soil 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).
6. (vi) Each plan for an impoundment which meets the Class B or Class C criteria in U.S. Department of Agriculture, Soil 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:

1. (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.
2. (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.
3. (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.
4. (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.

2.05.4 Reclamation 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 postmining 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 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:

1. (i) Schedule of revegetation;
2. (ii) Species and amounts per acre of seeds and seedlings to be used;
3. (iii) Methods to be used in planting and seeding;
4. (iv) Mulching techniques;
5. (v) Irrigation, if appropriate and pest and disease control measures, if any;
6. (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

1. 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. 7401 et seq.), the Clean Water Act (33 U.S.C. Sec. 1251 et 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.

2.05.5 Postmining 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)

1. (i) How the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use;
2. (ii) Where a land use different from the premining land use is proposed, all materials needed for approval of the alternative use under 4.16;
3. (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:

1. (i) How the proposed postmining land use is to be achieved and the necessary support activities which may be needed to achieve the proposed land use;
2. (ii) Where a land use different from the premining 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 premining land use capability will be achieved.

2.05.6 Mitigation 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

1. (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.
2. (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:
   1. (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. 1531 et seq .) or threatened or endangered species of wildlife designated by the state under the Nongame, Endangered and Threatened Species Conservation Act (Section 33 2 101 et seq ., C.R.S.) and their habitats;
   2. (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

1. 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:

1. (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;
2. (ii) The rights of present users to surface and ground water, which may be adversely affected by the surface coal mining and reclamation operations;
3. (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:

1. (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;
2. (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.
3. (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.
4. (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
   1. 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)

   2. (A) Monitoring of at least total dissolved solids or electrical conductivity corrected to 25centigrade (specific conductance), pH, manganese and iron;
   3. (B) Monitoring of water levels, reported as feet above or below land surface datum, for ground water plans;
   4. (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 postmining land use, or for good cause shown.
5. (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.
6. (vi) The location of each water diversion, collection, conveyance, treatment, storage, and discharge facility to be used within the permit area.
7. (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).
8. (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. 111(1)(d) 111(1)(h) (a) For any publicly owned park or 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 2.07.6(2)(e).

(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. 111(1)(c) 111(1)(d) 111(1) (i)

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

1. (i) If no such structures or renewable resource lands exist, no further information need be provided in the application under this Section.
2. (ii) If such structures or renewable resource lands exist, the application shall include:
   1. (A) A brief description of all structures and renewable resource lands which exist within the proposed permit and adjacent area; and (B) An appropriate map, prepared according to Section 2.10, showing the location and configuration of structures and renewable resource lands within the permit and adjacent area.

(b) If structures and renewable resource lands are determined to exist within the proposed permit and adjacent area, the application shall include a description of the worst possible consequences which subsidence, if it occurred, could have for such structures and renewable resource lands.

1. (i) The application shall include a determination of whether subsidence, if it occurred, could cause material damage or diminution of reasonably foreseeable use of such structures and renewable resource lands. This description of worst possible subsidence consequences shall include:
   1. (A) A brief description of pre and postmining land uses of the permit and adjacent area, as described pursuant to Sections 2.04.3 and 2.05.5;
   2. (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 or diminution of reasonably foreseeable use of structures and renewable resource lands which could result from the occurrence of the subsidence related phenomena described in accordance with Section 2.05.6(6)(b)(i)(B), including consideration of the definitions and considerations contained in Sections 2.05.6(6)(e)(ii)(A),(B), and (C).
2. (ii) If the description of worst possible subsidence consequences, prepared in accordance with Section 2.05.6(6)(b)(i), determines that no material damage or diminution of reasonably foreseeable use 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 Section 2.05.6(6)(c).
3. (iii) If the description of worst possible subsidence consequences, prepared in accordance with Section 2.05.6(6)(b)(i), determines that material damage or diminution of reasonably foreseeable use 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:
   1. (A) A subsidence survey, as described in Section 2.05.6(6)(e); or (B) A subsidence control plan, as described in Section 2.05.6(6)(f).

(c) Subsidence Monitoring Program.

1. (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:
   1. (A) Monuments shall be installed and surveyed prior to the commencement of mining.
   2. (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.
   3. (C) The orientation, location and elevation of each structure within the permit and adjacent area shall be monitored.
   4. (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.
   5. (E) Results of the monitoring program shall be submitted to the Division at least semi annually.
   6. (F) 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.
2. (ii) The application shall include an appropriate map, prepared according to the standards of Section 2.10, showing the location of monuments to be installed and structures 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 damage or diminution of reasonably foreseeable use of structures or renewable resource lands may occur, the permittee will be required to submit a subsidence control plan, as defined in Section 2.05.6(6)(f).

1. (ii) In order to protect structures and renewable resource lands within the permit and adjacent area, the Division, after consultation with the permittee, shall suspend underground coal mining under structures of 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:

1. (i) A detailed description of subsidence predicted to occur within the permit and adjacent area, including:
   1. (A) A brief description of the planned mining methods;
   2. (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;
   3. (C) A brief description of local mining experience concerning subsidence occurrence, if any;
   4. (D) A detailed description of subsidence related phenomena predicted to occur within the permit and adjacent area;
   5. (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 Section 2.10, showing:
      1. (I) Any existing subsidence features which exist within the permit and adjacent area;
      2. (II) The extent of the proposed mine workings;
      3. (III) The ground surface areal extent of an area determined by the projection of the angle-of draw, if predicted pursuant to Section 2.05.6(6)(e)(i)(E) 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.
2. (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 Section 2.05.6(6)(e)(i)(D) within the permit and adjacent area, including consideration of the following:
   1. (A) Material subsidence damage means, 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.
   2. (B) Material subsidence damage means, 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.
   3. (C) A determination of diminution of reasonably foreseeable use of structures or renewable resource lands within the permit and adjacent area which shall consider the capability of those structures and lands, before and after subsidence occurrence, to support those uses described in Section 2.05.6(6)(b)(i)(A), giving consideration to factors such as soil and foundation characteristics, topography, vegetative cover, surface hydrology and groundwater hydrology.
3. (iii) If the subsidence survey determines that no material damage or diminution of reasonably foreseeable use 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 designed to determine the accuracy of the subsidence prediction required by Section 2.05.6(6)(e)(i)(D).
4. (iv) If the subsidence survey determines that material damage or diminution of reasonable foreseeable use 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 Section 2.05.6(6)(f).

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

1. (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;
2. (ii) A detailed description of the mining method and other measures to be taken which may affect subsidence including:
   1. (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.
3. (iii) A detailed description of the measures to be taken to prevent subsidence from causing material damage or lessening the value or reasonably foreseeable use of the surface, including:
   1. (A) The anticipated effects of planned subsidence, if any;
   2. (B) Measures, if any, to be taken in the mine to reduce the likelihood of subsidence, including such measures as:
      1. (I) Backstowing or backfilling of voids;
      2. (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.
   3. (C) Measures to be taken on the surface to prevent material damage or lessening of the value or foreseeable use of the surface including such measures as:
      1. (I) Reinforcement of sensitive structures or features;
      2. (II) Installation of footers designed to reduce damage caused by movement;
      3. (III) Change of location of pipelines, utility lines or other features;
      4. (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 damage.
4. (iv) A detailed description of the measures to be taken to mitigate the effects of any material damage or diminution of value or foreseeable use of lands which may occur, including one or more of the following as required in 4.20.3:
   1. (A) Restoration or rehabilitation of structures and features, including approximate land surface contours, to premining condition.
   2. (B) Replacement of structures destroyed by subsidence.
   3. (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.
   4. (D) Purchase of non cancellable insurance policies payable to the surface owner in the full amount of the possible material damage or other comparable measures.
5. (v) A detailed description of measures to be taken to determine the degree of material damage or diminution of value or foreseeable use of the surface, including such measures as:
   1. (A) The results of pre subsidence surveys of all structures and surface features which might be materially damaged by subsidence.
   2. (B) Monitoring, if any, proposed to measure deformations near specified structures or features or otherwise as appropriate for the operation.
6. (vi) Appropriate maps, prepared according to the standards of 2.10, showing the underground workings, the location of any facilities or structures 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.
7. (vii) A schedule for the submittal of a detailed plan of the underground workings, as required by Rule 4.20.1(3).

2.06 REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

2.06.1 Scope.

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.

2.06.2 Experimental 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 postmining 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:

1. (i) Encourages advances in mining and reclamation technology, or (ii) Allows a postmining 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:

1. (i) Is potentially more or at least as environmentally protective, during and after the proposed mining operations, as those required under Rule 4;
2. (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:

1. (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 postmining 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 postmining land use of the lands to be affected will be an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use and, if:

1. (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 premining use;
2. (ii) The applicant demonstrates compliance with the requirements for acceptable alternative postmining land uses in 4.16;
3. (iii) The applicant has presented specific plans for the proposed postmining land use and appropriate assurances that such will be as follows:
   1. (A) Compatible with adjacent land uses and existing State and local land use plans and programs;
   2. (B) Obtainable according to data regarding expected need and market;
   3. (C) Assured of investment in necessary public facilities;
   4. (D) Supported by commitments from public agencies where appropriate;
   5. (E) Practicable with respect to private financial capability for completion of the proposed use;
   6. (F) Planned pursuant to a schedule attached to the reclamation plan so as to integrate the mining operation and reclamation with the postmining 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.
4. (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)

1. (i) Within the six month period preceding the end of the third year from the date of its issuance;
2. (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.

2.06.4 Steep 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.

2.06.5 Permits 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 postmining 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 postmining 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)

1. (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;
2. (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.

2.06.6 Prime 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 noncontiguous parcels if the operator can prove by clear and convincing evidence that, prior to August 3, 1977, the noncontiguous 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).

1. (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 of the U.S.D.A. Natural Resources Conservation Service. It is also available on-line at http://www.statlab.iastate.edu/soils/nssh/.
2. (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(2)(a), 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 nonmined 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 Secretary of Agriculture. Before any permit is issued for areas that include prime farmlands, the Division shall consult with the Secretary of Agriculture. The Secretary shall be provided, for review and comment, the proposed method of soil reconstruction in this plan submitted under 2.06.6(2).

(4) Issuance of permit. A permit for the mining and reclamation of prime reclamation of prime farmland may be granted by the Division, if it first finds, in writing, upon the basis of a complete application that: 114(4) 120(2)(g)

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

(b) The permit incorporates as specific conditions the contents of the plan submitted under 2.06.6(2) after consideration of any revisions to that plan suggested by the Secretary of Agriculture under 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 nonmined 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.

2.06.7 Variances 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

1. 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:

1. (i) Delineating the particular surface areas for which a variance is authorized;
2. (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)

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

(1) Scope. 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 stream. 114(2)(e) (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.

(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:

1. (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.
2. (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.
3. (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.
4. (iv) Documentation that areas identified in 2.06.8(3) are, or are not, subirrigated, based on ground water monitoring data, representative water quality, soil moisture measurements, and measurements of rooting depth, soil mottling, and water requirements of vegetation.
5. (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.
6. (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.

1. (i) The Division shall determine that an alluvial valley floor exists if it finds that:
   1. (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.
   2. (B) There is sufficient water to support agricultural activities as evidenced by:
      1. (I) The existence of flood irrigation in the area in question or its historical use;
      2. (II) The capability of an area to be flood irrigated, based on streamflow water yield, soils, water quality, topography and regional practices; or (III) Subirrigation of the lands in question, derived from the ground water system of the valley floor.
2. (ii) The Division shall determine that an alluvial valley floor does not exist if it finds that:
   1. (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;
   2. (B) There is insufficient water available to support flood irrigation or subirrigation 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.
3. (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:

1. (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:
   1. (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;
   2. (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;
   3. (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.
2. (ii) The significance to farming of the area to be affected;
3. (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;
4. (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;
5. (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:

1. (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:

1. (i) Geologic data, including geologic structure, and surficial geologic maps, and geologic cross sections;
2. (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;
3. (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;
4. (iv) Surveys and data required under this paragraph for areas designated as alluvial valley floors because of their subirrigation 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;
5. (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;
6. (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:

1. (i) Characteristics supporting the function of collecting water which include, but are not limited to:
   1. (A) The amount and rate of runoff and a water balance analysis, with respect to rainfall, evapotranspiration, infiltration and ground water recharge;
   2. (B) The relief, slope, and density of the network of drainage channels;
   3. (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.
2. (ii) Characteristics supporting the function of storing water which include, but are not limited to:
   1. (A) Surface roughness, and vegetation of the channel, flood plain, and low terraces that retard the flow of surface waters;
   2. (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.
3. (iii) Characteristics supporting the function of regulating the flow of water which include, but are not limited to:
   1. (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;
   2. (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
4. (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)

1. (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;
2. (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)

1. (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.
2. (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:
   1. (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, the actual extent of the mine workings on August 3, 1977 and adjacent lands for which there existed substantial demonstrable financial or regulatory commitment on August 3, 1977, as 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:

1. (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.
   1. (A) Salt tolerance threshold values shall be based on applicable published research or testing specific to the situation, as approved by the Division.
   2. (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.
2. (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 premining conditions.
3. (iii) Potential decreases in surface flows that would reduce the amount of irrigable land compared to premining conditions.
4. (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.

2.06.9 Augering.

(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.

2.06.10 Coal 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.

2.06.11 In 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.

2.06.12 Surface 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.

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

2.07.2 Objectives.

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.

2.07.3 Government 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, or for a permit revision, technical revision, or renewal of an existing permit, the applicant shall submit to the Division the proposed notice of publication of the ownership, precise location, and boundaries of the land to be affected by the proposed surface coal mining operation. Upon notification to the applicant that the application for permit or the application for a permit revision or renewal is complete, the applicant shall place the notice of ownership, precise location, and boundaries of land to be affected by the proposed surface coal mining operation in a local newspaper of general circulation in the locality of said operation. This publication shall be published at least once a week for four consecutive weeks. The publication shall contain, at a minimum, the following information: 108, 118(1),(2) (a) The name and business address of the applicant;

(b) A map or description which shall:

1. (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;
2. (ii) Clearly show or describe the exact location and boundaries of the proposed permit area;
3. (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.

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

1. (i) The applicant's intention to conduct surface coal mining and reclamation operations on a legally described tract of land; 118(3)
2. (ii) The application number;
3. (iii) Where a copy of the application may be inspected.
4. (iv) Where comments on the application may be submitted.

(b) The written notifications shall be sent to:

1. (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;
2. (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;
3. (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:

1. (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)

1. (i) It shall be held in the locality of the proposed surface coal mining operation or release.
2. (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.
3. (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.
4. (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.

2.07.4 Division 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. 119(1)

(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 after a proposed or final decision granting a permit. However, such performance bond must be filed and approved prior to the issuance of the permit. 113(1)

(3) Formal hearing by the Board. 119(4)

(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: 119(7)

1. (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)
2. (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.

(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) 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. 119(9)

(g) 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.

(h) Notwithstanding any of the foregoing provisions of 2.07, no time limit under the Act or 2.07 requiring the Board or Division to act shall be considered expired from the time the Board or Division initiates a proceeding under 2.07.6(1)(c) until the final decision of the hearing body.

2.07.5 Public 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.

1. 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.

2.07.6 Criteria 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 2.07. 114(2),(3), (4)

1. (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 available information concerning Federal and State failure to abate cessation orders, unabated Federal and State imminent harm cessation orders, delinquent civil penalties issued pursuant to Section 518 of the Surface Mining Control and Reclamation Act, (30 U.S.C.1201 et. seq.), including delinquent civil penalties assessed under any State regulatory programs approved pursuant to SMCRA, bond forfeitures where violations upon which the forfeitures were based have not been corrected, delinquent abandoned mine reclamation fees, and unabated violations of Federal and State laws, rules, and regulations pertaining to air or water environmental protection incurred in connection with any surface coal mining operation, the Division shall not issue the permit if any surface coal mining and reclamation operation owned or controlled by either the applicant or by any person who owns or controls the applicant is currently in violation of the Act or any other law, rule or regulation referred to in this paragraph. In the absence of a failure to abate cessation order, the regulatory authority may presume that a notice of violation issued pursuant to 5.03.2(2) or under a Federal or State program has been or is being corrected to the satisfaction of the agency with jurisdiction over the violation, except where evidence to the contrary is set forth in the permit application, or where the notice of violation is issued for nonpayment of abandoned mine reclamation fees or civil penalties. If a current violation exists, the Division shall require the applicant or person who owns or controls the applicant, to either: 110(2)(f), 114(3)

1. (i) Submit proof to the Division which is satisfactory to the regulatory authority, department or agency which has jurisdiction over such violation that the violation:
   1. (A) Has been corrected, or (B) Is in the process of being corrected; or
2. (ii) Establish to the Division that the applicant, any person who owns or control the applicant or any person owned or controlled by either, has filed and is presently pursuing, in good faith, a direct administrative or judicial appeal to contest the validity of that violation. If the administrative or judicial hearing authority either denies the appeal or affirms the violation, then any surface coal mining operations being conducted under a permit issued according to 2.07.6(1) shall be immediately terminated, unless and until the provisions of 2.07.6(1)(b)(i) are satisfied. 114(3)
3. (iii) Any permit that is issued on the basis of proof submitted under the provisions of 2.07.6(1)(b)(i) that a violation is in the process of being corrected, or pending the outcome of an appeal described in 2.07.6(1)(b)(ii), shall be conditionally issued.

(c) 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)

1. (b) 2.07.4(3)(f). 114(3)

(d) After a written decision is published, but before the permit is issued, the Division shall reconsider its decision to approve the application, based on the compliance review required by 2.07.6(1)(b) in light of any new information submitted under 2.03.4(5) and 2.03.5(4).

(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: 114(2),(3),(4)

(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 of August 3, 1977, and with the further exception of those surface coal mining operations which were in existence on August 3, 1977:

1. (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 of the Federal Regulations;
2. (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 of the Federal Regulations 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; 114(2)(d) (iii) Not on any lands subject to the following prohibitions or limitations:
   1. (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)), and National Recreation Areas designated by Act of Congress; 114(2)(g)(I)
   2. (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: 114(2)(g)(II)
      1. (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," as amended, and the provisions of the Act;
   3. (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;
3. (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 2.04.6(2)(d)(iv)(A) and (B). 114(2)(g)(IV)
   1. (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.
   2. (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.
   3. (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.
   4. (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.
4. (v) Not within 300 feet measured horizontally from any occupied 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 signator 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 2.07.6(2)(d)(v) and binding subsequent owners 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. 114(2)(g)(V)

(e) Subject to valid rights existing as of August 3, 1977, and with the further exception of those surface coal mining operations which were in existence on August 3, 1977;

1. (i) The proposed operations will not 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, unless approved jointly by the Board and the Federal, State, or local agency with jurisdiction over the park or place. 114(2) (ii) 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:
   1. (A) A request for the agency's approval or disapproval of the operations;
   2. (B) A notice to the appropriate agency that it must respond within 30 days from the receipt of the request.
2. (iii) A permit for the operation shall not be issued unless jointly approved by all affected agencies with jurisdiction over the park or historic site. 114(2)(g)(III)

(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 2.03.6(2). 114(2)(a) (g) The applicant has either: 114(3)

1. (i) Submitted the proof required by 2.07.6(1)(b)(i); or (ii) Made the demonstration required by 2.07.6(1)(b)(ii).

(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 bond of Rule 3, prior to the issuance of permit. 113(1)

(k) The applicant has, with respect to both prime farmland and alluvial valley floors, obtained either a negative determination or satisfied the requirements of 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. 114(2)(e)(I)(A) (l) The proposed postmining land use of the permit area has been approved by the Division in accordance with the requirements of 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

1. Sec. 1531 et seq.) or the Nongame, Endangered or Threatened Species Conservation Act (Section 33-2-101 et 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.

2.07.7 Conditions 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.

2.08 PERMIT REVIEWS, REVISIONS AND RENEWALS AND TRANSFER, SALE AND ASSIGNMENT

2.08.1 Scope. 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.

2.08.2 Objectives.

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.

2.08.3 Division 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.

2.08.4 Revisions 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 postmining 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 or a permit shall contain: 115, 116(2)

(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) Hearing and notice requirements.

(a) Permit revision. An application for a permit revision shall be subject to the hearing and notice requirements of 2.07. 115(1)(b)

(b) Technical Revision. 116

1. (i) An applicant for a technical revision shall place an advertisement in a local newspaper pursuant to the requirements of 2.07.3(2), 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 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.
2. (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)
3. (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.

1. (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.
2. (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.
3. (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).

2.08.5 Right 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.

(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 compiled 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. 109(7)(c)

(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:

1. (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;
2. (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)

1. (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;
2. (ii) The present surface coal mining and reclamation operation is not in compliance with the Act and these Rules;
3. (iii) The renewal requested substantially jeopardizes the permittee's continuing responsibility on existing permit areas;
4. (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)

2.08.6 Transfer, 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:

1. (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;

1. (i) The name and address of the existing permittee;
2. (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;
3. (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: 115(2)

(a) The person seeking approval is eligible to receive a permit in accordance with Rule 2.07.6(1) (b), (c) and (2)(h);

(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.

2.09 SMALL OPERATOR ASSISTANCE PROGRAM

2.09.1 Assistance 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)

2.09.2 Eligibility 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 twelve month period of the permit will not exceed 100,000 tons. Production from the following operations shall be attributed to the applicant:

1. (i) All coal produced by operations entirely controlled, by reason of ownership, direction of the management or in any other manner, by the applicant;
2. (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;
3. (iii) The pro rata share of coal produced by operations owned or controlled by the person who owns or controls the applicant's operation;
4. (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.

2.09.3 Filing 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:

1. (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:

1. (i) The name under which the coal is or will be mined;
2. (ii) The permit number and Mining Enforcement and Safety Administration identification number if the mine is operating;
3. (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:

1. (i) The method of surface coal mining operation proposed;
2. (ii) The anticipated starting and termination dates of mining operations;
3. (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:

1. (i) The area of land to be affected and the natural drainage above and below the affected area;
2. (ii) The names of property owners within the area to be affected and of adjacent lands;
3. (iii) The location of existing structures and developed water sources within the area to be affected and on adjacent lands;
4. (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:

1. (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.

2.09.4 Application 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.

2.09.5 Minimum 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(3)(b)(iii) 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

1. 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.

2.09.7 Assistance Funding. 112(1)

(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.

2.09.8 Applicant 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.

2.10 MAPS AND PLANS

2.10.1 General 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.

2.10.2 Permit 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.

2.10.3 Specific 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)

RULE 3 PERFORMANCE BOND REQUIREMENTS

3.01 INTRODUCTION

This Rule sets forth minimum requirements and responsibilities for filing and maintaining performance bonds for surface coal mining and reclamation operations, and coal exploration, in accordance with the Act. The Rule includes minimum requirements for determining the amounts and periods of liability for performance bonds; it establishes minimum standards for the form, conditions and terms of performance bonds; it sets forth minimum provisions for criteria, schedule and procedures for release of performance bonds; it establishes provisions to be applicable whenever a proceeding for the forfeiture of all or any part of a performance bond, as a result of a failure to meet the conditions upon the bond, is initiated; and it sets forth special requirements for construction of certain mine drainage control facilities.

3.02 PERFORMANCE BOND REQUIREMENTS FOR SURFACE COAL MINING AND RECLAMATION

OPERATIONS

3.02.1 General Requirements.

(1) After an application for a permit, or for a revised permit, has been approved by the Division or the Board under Rule 2, but before such permit is issued, the applicant shall file with the Division, on a form prescribed and furnished by the Board, a performance bond payable to the State of Colorado. 113(1)

The performance bond will be conditioned upon the faithful performance of all the requirements of the Act, these Rules, the reclamation plan and the permit. The amount, duration, form, conditions, and terms of the performance bond shall conform to 3.02. 113(1),(2),(3) (2) An operator shall not disturb surface acreage or extend any underground shafts, tunnels or operations prior to approval of the permit and receipt of approval from the Division of a performance bond covering the surface acreage to be affected.

(3) The performance bond shall cover the area of land within the permit area upon which surface coal mining and reclamation operations are to be initiated and conducted. 113(1) (4) Liability on the performance bond shall continue until the entire reclamation plan required under the Act, these Rules, and the provisions of the permit have been completed, and until the permittee is released from any further liability pursuant to 3.03. In any case, liability on a performance bond covering a permit area shall continue for a period not less than that specified in 3.02.3. 113(1),(2) (5) After the amount of the bond has been determined for the permit area in accordance with 3.02.2, the applicant shall file either:

(a) The entire performance bond amount required during the term of the permit; or (b) A cumulative bond schedule listing the areas to be covered by bond and the sequence of anticipated release of bond liability amount through phases of reclamation, as described in (6) below, and the bond amount required for the first increment of the schedule. The amount of bond required for the first increment, and therefore, to obtain the permit, shall include the full reclamation cost of the initial area being affected, but shall apply to the entire permit area.

(6) When the applicant elects to file a cumulative bond schedule, such schedule shall identify the initial and successive areas for bonding on the permit application map submitted for approval as provided in 2.05.2, and shall specify the proportion of the total bond amount, required for the entire permit area, which will be filed prior to commencing operations on each incremental area. This cumulative bond schedule must correspond to the increments of the mining schedule approved in the permit. Each scheduled incremental bond amount must be filed with the Division at least thirty (30) days prior to the commencement of surface coal mining and reclamation operations in the incremental area corresponding to that bond amount. The schedule shall be supported by a detailed estimated timetable for accomplishment of the reclamation plan, and a detailed estimate of the cost per acre of reclamation for each incremental area. Any permittee who mines an increment prior to submission and approval of bond for that increment shall be in violation of these Rules.

(7) The bond liability of the permittee shall include those actions which he is obliged to take under the permit, including completion of the reclamation plan in such a manner that the land will be capable of supporting a postmining land use approved under 4.16.3. When an alternative land use of industrial or commercial, or residential is approved, the Division shall require a bond amount sufficient to insure that the land could be reclaimed to a condition capable of supporting the pre mine land use, should the alternative land use prove to be infeasible in the event of bond forfeiture. Implementation of an alternative post mining land use approved under 4.16.3, which is beyond the control of the permittee, need not be covered by the bond.

3.02.2 Determination of Bond Amount.

(1) The amount of the bond shall be sufficient to assure the completion of the reclamation plan if the work had to be performed by the Board, through independent contractors, in the event of forfeiture. 113(1)

The amount required for each bonded area shall depend upon the reclamation requirements of the approved permit and shall reflect the probable difficulty of reclamation, giving consideration to such factors as topography, geology of the site, hydrology, and revegetation potential. The amount of the performance bond shall be determined by the Division as part of the decision on permit approval as described in 2.07 and shall be subject to review by the Board as described in 2.07. 113(1), 114 (2) In order to assure sufficiency, the amount shall be based on, but not be limited to:

(a) The estimated costs submitted by the applicant in accordance with 2.05.4. 113(1) (b) The additional estimated costs to the Board which may arise from applicable public contracting requirements or the need to bring personnel and equipment to the permit area after its abandonment by the permittee to complete the reclamation plan. 113(1) (c) All additional estimated costs necessary, expedient, and incident to the satisfactory completion of the requirements identified in 3.02. 113(1) (d) Such other cost information as may be required by or available to the Division. 113(1) (3) In no case shall the bond for the entire area under one permit be less than $10,000. 113(1) (4) The amount of the performance bond required shall be adjusted for good cause as affected land acreages are increased or decreased or when the cost of future reclamation changes including the cost of abating any violation for which a notice of violation has been issued. The Division shall review the amount of bond required for a permit area and the terms of acceptance of the bond at the time permit reviews are conducted under 2.08.3 or every two and one half years, whichever is more frequent. The procedures for any adjustment shall include: 113(5) (a) Notification of the permittee of any proposed bond adjustment and provide the permittee with an opportunity for an informal conference on the adjustment;

(b) Issuance of a written proposed decision by the Division to adjust the bond amount, publication of notice of the proposed decision in a newspaper of general circulation in the locality of the mining operation once a week for two weeks following issuance of the decision, and notification of the permittee, the surety and any person with a property interest in the collateral who has requested notification;

(c) An opportunity for a formal hearing pursuant to Rule 2.07.4(3);

(5) A permittee may request reduction of the required performance bond amount upon submission of evidence to the Division proving to the Division that the permittee's method of operation or other circumstances will reduce the maximum estimated cost to the Division to complete the reclamation responsibilities and therefore warrant a reduction of the bond amount. The request and demonstration shall be in the form of a permit revision application, or technical revision application, as appropriate. Bond adjustments which involve undisturbed land or revision of the cost estimate of reclamation are not considered bond release subject to procedures of 3.03.

(6) The amount of bond, as determined under this Rule and as adjusted from time to time, is an estimate of the cost of completing the relevant reclamation plan. It does not operate to any extent as a limitation upon the obligation of the permittee to complete the reclamation plan, the cost of which may exceed or be less than the amount of bond.

3.02.3 Period of Liability for Performance Bond.

(1) Liability under the bond(s) applicable to a permit shall be for the duration of the surface coal mining and reclamation operations, for a period coincident with the permittee's responsibility for revegetation requirements in 4.15 and paragraph (2) below, and shall continue until release of the bond(s) in accordance with 3.03. 113(2)

(2) The permittee shall assume responsibility for successful revegetation under a performance bond for a minimum period beginning after the last year of augmented seeding, fertilizing, irrigation or other work. 120(2)(t)

(a) In areas where the annual average precipitation is more than twenty six (26) inches, this minimum period of liability shall continue for five years, with the exception of (c) below.

(b) In areas where annual average precipitation is twenty six (26) inches or less, the minimum period of liability shall continue for ten years, with the exception of (c) below.

(c) For lands with approved industrial or commercial, or residential post mining land use, the minimum period of liability shall continue until the permittee demonstrates that development of such land use has substantially commenced and is likely to be achieved, and until compliance with the revegetation requirement of 4.15.10(2) or alternative requirements of 4.15.10(3) is demonstrated.

(d) The period of liability shall begin again whenever augmented seeding, fertilizing, irrigation or other work is required or conducted on the site prior to bond release, with the exceptions described in 4.15.7(5).

(e) A portion of the bonded area requiring reinitiation of the extended liability period because of augmentation may be separated from the original area and bonded separately upon approval by the Division. Before approving such a separation, the Division shall determine the separated area:

1. (i) Is not significant in extent in relation to the entire area under bond; and (ii) Is limited to a distinguishable contiguous portion of the bonded area.

(3) If the Board approves a postmining cropland use, in accordance with 4.16.3(9), the applicable five year or ten year period of responsibility for revegetation shall commence at the date of initial planting for such postmining cropland use. 120(2)(t)

(4) When the Board issues a written finding approving postmining cropland use under 4.16.3(9) as part of the mining and reclamation plan, the provisions of 4.15.9 shall apply, as shall the requirement for an extended period of responsibility as described in (2) and (3) above. 120(2)(t) (5) For purposes of paragraph (2) above, the annual average precipitation can be determined either:

(a) By interpolation, using standard techniques, from 'Mean Annual Precipitations,' Map p. 97, The National Atlas of the United States, U.S. Department of the Interior, Geological Survey, 1970; or from 'Climatic Atlas of the United States,' U.S. Dept. of Commerce, National Oceanic and Atmospheric Administration, 1974; or from long term precipitation averages from "Climatological Data," U.S. Department of Commerce, National Oceanic and Atmospheric Administration; or from other official records; or (b) Based on 10 years of continuous and reliable precipitation records from stations located in or adjacent to the mine plan area.

3.02.4 Form, Conditions, and Terms of Performance Bonds.

(1) The Board shall allow for the following forms of performance bonds except that the Board may, in its discretion, allow for conditioned acceptance of performance bonds as described in 3.02.4(2)(c) (ix): 113(2),(3),(4)

(a) A surety bond, in which case the bond shall be executed by the applicant and a corporate surety licensed to do business in this State pursuant to 3.02.4(2)(b); 113(2) (b) A collateral bond, in which case the applicant shall deposit cash, negotiable bonds of the United States government or any political subdivision of this State, negotiable certificates of deposit or an irrevocable letter of credit of any bank or other savings institution organized or transacting business in the United States, pursuant to 3.02.4(2)(c) and (d). 113(2)

(c) A self bond, which the Division may accept without separate surety when the applicant demonstrates to the satisfaction of the Division that he/she has the financial means sufficient to self bond for reclamation pursuant to 3.02.4(2)(e). 113(3) (d) An alternative bonding system approved by the Division pursuant to 3.02.4(2)(f); and (e) Any combination of the above bond forms which shall, in the aggregate, conform to the requirements for bonding as specified in paragraph (2) below.

(2) Terms and conditions of the bond.

(a) Replacement of bonds. 113(2),(3)

1. (i) The Division may allow the permittee to replace an approved performance bond with any form or forms of performance bond described in 3.02.4, if the liability which is accrued against the permittee on the permit area is transferred to such replacement bonds, and if the requirements described in this Rule are otherwise met.
2. (ii) The Division shall not release existing performance bonds until the permittee has submitted and the Division has approved acceptable replacement performance bonds. A replacement of performance bonds pursuant to 3.02 shall not constitute a release of bond under 3.03. 113(2),(3)

(b) Surety bonds shall be subject to the following conditions: 113(2)

1. (i) (A) The Division shall not accept the bond of a surety company unless the bond shall not be cancelable by the surety company, for any disturbed lands within the permit area, at any time for any reason including, but not limited to, non payment of premium or bankruptcy of the permittee during the period of liability. Surety bond coverage for permitted lands not disturbed may be cancelled by the surety, with prior consent of the Division, provided the surety gives at least ninety (90) days notice to both the permittee and the Division of the surety's intent to cancel prior to cancellation. Such notice shall be by certified mail and the notice shall not be effective until received by both the permittee and the Division. The Division will advise the surety company, within 30 days after receipt of the notice of intent to cancel, whether the bond may be cancelled on an undisturbed area. Such cancellation shall not be effective for any lands subject to the respective bond coverage which are disturbed prior to the effective date of the cancellation.
   1. (B) Upon the effective date of cancellation, the surety company shall not be liable for any further surface land disturbance within the area of the permit area covered by the cancelled bond. However, the surety company shall still be liable for all reclamation work on the permitted land that was required by these Rules up to the date of the cancellation. If the permittee is unable to secure a replacement bond approved by the Division as described in (C) below, prior to the effective date of cancellation of the original bond, his permit shall be suspended, revoked or amended to include only those operations for which the remaining bond liability is sufficient.
   2. (C) The Division may approve further surface disturbance in the permit area caused by the permittee, after the date of cancellation of the surety, only if a replacement bond is filed by the permittee and approved by the Division prior to the cancellation date. The permittee may elect to file a cumulative bond schedule for the replacement bond, and the form of the replacement bond shall comply with 3.02.4(1)(a)-(e).
2. (ii) The Division shall not accept surety bonds in excess of 10 percent of the surety company's paid up capital or guaranty fund and surplus on any one risk as set forth in 10-3-102 C.R.S.
3. (iii) The Division shall not accept surety bonds from a surety company for any person, on all permits held by that person, in excess of three times the limit specified in (ii) above.
4. (iv) The bond shall provide that the surety and the permittee shall be jointly and severally liable.
5. (v) The bond shall provide that:
   1. (A) The surety will give prompt notice to the permittee and the Division of any notice received or action filed alleging the insolvency or bankruptcy of the surety or permittee, or alleging any violations of regulatory requirements which could result in suspension or revocation of the surety's license to do business;
   2. (B) In the event the surety becomes unable to fulfill its obligations under the bond for any reason, notice shall be given immediately to the permittee and the Division; and (C) Upon the incapacity of a surety by reason of bankruptcy, insolvency or suspension or revocation of its license, the permittee shall be deemed to be without bond coverage in violation of 3.02.1(2). The Division shall issue a notice of violation against any permittee who is without bond coverage. The notice shall specify a reasonable period to replace bond coverage, not to exceed 90 days. During this period, the Division shall conduct additional inspections, as necessary, to ensure continuing compliance with other permit requirements. Such notice of violation, if abated within the period allowed, shall not be counted as such for purposes of determining "patterns of violations" under 5.03.3 and need not be reported as a past violation in permit applications under 2.03.5. If such a notice of violation is not abated in accordance with the schedule, a cessation order shall be issued; or the Division shall amend the relevant permit to include only those operations for which any other or remaining bond liability is sufficient.

(c) Collateral bonds shall be subject to the following conditions: 113(2)

1. (i) The Division shall obtain possession of and keep in custody all collateral deposited by the applicant, until authorized for release or replacement as provided in this Rule.
2. (ii) The Division shall value collateral at its current market value subject to adjustment for legal and liquidation fees, as well as value depreciation, marketability, and fluctuations which might affect the net cash available to complete reclamation. The value of the collateral may be evaluated at any time, but it shall be evaluated as part of permit renewal and, if necessary, adjusted.
3. (iii) The Division shall require that certificates of deposit be assigned to the State of Colorado in writing, and upon the books of the bank issuing such certificates.
4. (iv) The Division shall not accept an individual certificate for a denomination in excess of $100,000, or maximum insurable amount as determined by F.D.I.C. and F.S.L.I.C.
5. (v) The Division shall require the banks issuing these certificates to waive all rights of setoff or liens which it has or might have against those certificates.
6. (vi) The Division shall only accept certificates of deposit which are automatically renewable.
7. (vii) The Division shall require the applicant to deposit sufficient amounts of certificates of deposit to assure that the Division will be able to liquidate those certificates prior to maturity, upon forfeiture, for the amount of the bond required by this Rule.
8. (viii) Cash or securities posted as bond shall be deposited by the Treasurer of the State of Colorado in separate escrow accounts, to be known as reclamation surety accounts, and interest accruing on said funds shall be paid to the permittee annually as follows: 113(4)
   1. (A) In the case of negotiable bonds and negotiable certificates of deposit, the interest rate paid on such collateral shall be that rate which accrues per the document submitted to the State.
   2. (B) In the case of cash, the State retains the right to charge a nominal and reasonable fee against said accrued interest for administrative costs.
9. (ix) Real property posted as a collateral bond shall meet the following criteria: 113(2)
   1. (A) The applicant shall grant the State a mortgage or perfected first lien security interest in real property located in the State.
   2. (B) The instrument creating such mortgage or security interest shall grant to the State a lien sufficient to secure the right and power in the State to foreclose upon said property pursuant to Colorado law, concurrent with the issuance of a notice of forfeiture under 3.04, to sell or otherwise dispose of the property by a public or private transaction, and to establish the State as the first and prior secured creditor with respect to such property, so as to assure the State of a preferred claim over all other creditors in case of bankruptcy.

      The property subject to the security interest shall not be subject to any conflicting or prior security interest. The instrument creating the interest in real property shall be recorded as authorized for fee interests. In order for the Division to evaluate the adequacy of the property offered to satisfy this requirement, the applicant shall submit a schedule of the real property which will be pledged to secure the obligations under the collateral bond agreement. The schedule shall include:

      1. (I) A description of the property;
      2. (II) The value of the property. The property shall be valued at fair market value as determined by an appraisal conducted by appraisers appointed by the Division. The appraisal shall be expeditiously made, and a copy thereof furnished to the Division and the applicant. The reasonable expense of the appraisal shall be borne by the applicant; and (III) Proof of the applicant's possession of, and title to, the unencumbered real property within the State which is offered to secure the obligations under the bond. Such proof shall include:
         1. 1. If the real property interest to be pledged arises under a Federal or State lease, a status report prepared by an attorney, satisfactory to the Division as disinterested and competent to so evaluate the asset, and an affidavit from the lessor establishing that the leasehold could be transferred to the State upon forfeiture;
         2. 2. If the real property interest to be pledged is a fee estate, a current commitment for title insurance from a title insurance company licensed in this State, satisfactory to the Division, insuring title to said real property in the applicant; and 3. The property may include land which is part of the permit area. Land pledged as security shall not be disturbed under a permit while it is serving as security under this section.
         3. 4. Proof the person granting the security interest holds possession of, and title to, personal property within the State which is offered to secure the obligation of the applicant under the collateral bond. Evidence of such ownership shall be submitted in a form satisfactory to the Division. The personal property offered shall not include:
         4. a. Property in which a security interest is held by any person;
         5. b. Goods which the applicant sells in the ordinary course of his or her business;
         6. c. Fixtures;
         7. d. Securities which are not negotiable bonds of the U.S. Government or general revenue bonds of the State; or e. Certificates of deposit which are not federally insured or where the depository is unacceptable to the Division.
   3. (C) The bond value of any real property shall be adjusted for any legal or liquidation fees or other costs or value uncertainties that might affect the net cash available to complete the reclamation work.
10. (x) Persons with an interest in collateral posted as bond, and who desire notification of actions pursuant to the bond, shall request the notification in writing to the Division at the time collateral is offered. However, the foregoing sentence shall not be in derogation of any such person's rights by law to notice of any such actions.

(d) Irrevocable letters of credit shall be subject to the following conditions: 113(2)

1. (i) The letter may be issued by a bank organized or authorized to do business in the U.S. and located in the state of Colorado, except that the bank need not be located in the state of Colorado if the letter of credit can be exercised at an affiliate or subsidiary located in the state of Colorado, or is confirmed by a bank located in the state of Colorado, or at the Board's discretion is determined to be an acceptable letter of credit;
2. (ii) The letter shall be irrevocable, except prospectively, and then only upon the anniversary date of the letter and upon the giving, to the Division and the permittee, of at least ninety days prior notice of the intention to revoke. Letters of credit which have been prospectively revoked shall be forfeited and collected by the Division if not replaced by other suitable bond at least 30 days prior to the expiration date of the letter.
3. (iii) The letter must be payable to the State of Colorado in part or in full upon demand and receipt from the Division of a notice of forfeiture issued in accordance with 3.04.
4. (iv) The Division shall not accept a letter of credit in excess of 10 percent of the bank's capital surplus account as shown on a balance sheet certified by a Certified Public Accountant.
5. (v) The Division shall not accept letters of credit from a bank for any person, on all permits held by that person, in excess of 30 percent of the bank's capital surplus account as shown on a balance sheet certified by a Certified Public Accountant.
6. (vi) The letter shall provide that:
   1. (A) The bank will give prompt notice to the permittee and the Division of any notice received or action filed alleging the insolvency or bankruptcy of the bank or permittee, or alleging any violations of regulatory requirements which could result in suspension or revocation of the bank's charter or license to do business;
   2. (B) In the event the bank becomes unable to fulfill its obligations under the letter of credit for any reason, notice shall be given immediately to the permittee and the Division; and (C) Upon the incapacity of a bank by reason of bankruptcy, insolvency or suspension or revocation of its charter or license, the permittee shall be deemed to be without performance bond coverage in violation of 3.02.1(2). The Division shall issue a notice of violation against any permittee who is without bond coverage. The notice shall specify a reasonable period to replace bond coverage, not to exceed 90 days. During this period, the Division shall conduct additional inspections, as necessary, to ensure continuing compliance with other permit requirements. Such notice of violation, if abated within the period allowed, shall not be counted as such for purposes of determining "patterns of violations" under 5.03.3 and need not be reported as a past violation in permit applications under 2.03.5. If such a notice of violation is not abated in accordance with the schedule, a cessation order shall be issued; or the Division shall amend the relevant permit to include only those operations for which any other or remaining bond liability is sufficient.
7. (vii) The letter shall be automatically renewable upon each anniversary date unless notice is given pursuant to Rule 3.02.4(2)(d)(ii). 113(3)

(e) Self-bonds shall be subject to the following conditions:

1. (i) The Division may accept a self-bond from an applicant for a permit if all of the following conditions are met by the applicant or its corporation guarantor:
   1. (A) The applicant designates a suitable agent to receive service of process in the State where the proposed surface coal mining operation is to be conducted.
   2. (B) The applicant has been in continuous operation as a business entity for a period of not less than 5 years. Continuous operation shall mean that business was conducted over a period of 5 years immediately preceding the time of application.
      1. (I) The Division may allow a joint venture or syndicate with less than 5 years of continuous operation to qualify under this requirement, if each member of the joint venture or syndicate has been in continuous operation for at least 5 years immediately preceding the time of application.
      2. (II) When calculating the period of continuous operation, the Division may exclude past periods of interruption to the operation of the business entity that were beyond the applicant's control and that do not affect the applicant's likelihood of remaining in business during the proposed surface coal mining and reclamation operations.
   3. (C) The applicant submits financial information in sufficient detail to show that the applicant meets one of the following criteria:
      1. (I) The applicant has a current rating for its most recent bond issuance of "A" or higher as issued by either Moody's Investor Service or Standard and Poor's Corporation;
      2. (II) The applicant has a tangible net worth of at least $10 million, a ratio of total liabilities to net worth of 2.5 times or less, and a ratio of current assets to current liabilities of 1.2 times or greater; or (III) The applicant's fixed assets in the United States total at least $20 million, and the applicant has a ratio of total liabilities to net worth of 2.5 times or less, and a ratio of current assets to current liabilities of 1.2 times or greater.
   4. (D) The applicant submits:
      1. (I) Financial statements for the most recently completed fiscal year accompanied by a report prepared by an independent certified public accountant in conformity with generally accepted accounting principles and containing the accountant's audit opinion or review opinion of the financial statements with no adverse opinion;
      2. (II) Unaudited financial statements for completed quarters in the current fiscal year; and (III) Additional unaudited information as requested by the Division.
2. (ii) The Division may accept a written guarantee for an applicant's self-bond from a parent corporation guarantor, if the guarantor meets the conditions of paragraphs (i)(A) through (i)(D) of this section as if it were the applicant. Such a written guarantee shall be referred to as a "corporate guarantee." The terms of the corporate guarantee shall provide for the following:
   1. (A) If the applicant fails to complete the reclamation plan, the guarantor shall do so or the guarantor shall be liable under the indemnity agreement to provide funds to the Division sufficient to complete the reclamation plan, but not to exceed the bond amount.
   2. (B) The corporate guarantee shall remain in force unless the guarantor sends notice of cancellation by certified mail to the applicant and to the Division at least 90 days in advance of the cancellation date, and the Division accepts the cancellation. The cancellation may be accepted by the Division if the applicant obtains suitable replacement bond before the cancellation date or if the lands for which the self-bond, or portion thereof, was accepted have not been disturbed.
3. (iii) The Division may accept a written guarantee for an applicant's self-bond from any corporate guarantor, whenever the applicant meets the conditions of paragraphs (i)(A), (i)(B), and (i)(D) of this section, and the guarantor meets the conditions of paragraphs (i)(A) through (i)(D) of this section. Such a written guarantee shall be referred to as a "non-parent corporate guarantee." The terms of this guarantee shall provide for compliance with the conditions of paragraphs (ii)(A) and (ii)(B) of this section. The Division may require the applicant to submit any information specified in paragraph (i)(C) of this section in order to determine the financial capabilities of the applicant.
4. (iv) For the Division to accept an applicant's self-bond, the total amount of the outstanding and proposed self-bonds of the applicant for surface coal mining and reclamation operations shall not exceed 25 percent of the applicant's tangible net worth in the United States. For the Division to accept a corporate guarantee, the total amount of the parent corporation guarantor's present and proposed self- bonds and guaranteed self-bonds for surface coal mining and reclamation operations shall not exceed 25 percent of the guarantor's tangible net worth in the United States. For the Division to accept a non-parent corporate guarantee, the total amount of the non-parent corporation guarantor's present and proposed self-bonds and guaranteed self-bonds for surface coal mining and reclamation operations shall not exceed 25 percent of the guarantor's tangible net worth in the United States.
5. (v) If the Division accepts an applicant's self-bond, an indemnity agreement shall be submitted subject to the following requirements:
   1. (A) The indemnity agreement shall be executed by all persons and parties who are to be bound by it, including the parent corporation guarantor, and shall bind each jointly and severally.
   2. (B) Corporations applying for a self-bond, and parent and non-parent corporations guaranteeing an applicant's self bond shall submit an indemnity agreement signed by two corporate officers who are authorized to bind their corporations. A copy of such authorization shall be provided to the Division along with an affidavit certifying that such an agreement is valid under all applicable Federal and State laws. In addition, the guarantor shall provide a copy of the corporate authorization demonstrating that the corporation may guarantee the self-bond and execute the indemnity agreement.
   3. (C) If the applicant is a partnership, joint venture, or syndicate, the agreement shall bind each partner or party who has a beneficial interest, directly or indirectly, to the applicant.
   4. (D) Pursuant to Section 3.04, the applicant, parent or non-parent corporate guarantor shall be required to complete the approved reclamation plan for the lands in default or to pay the Division an amount necessary to complete the approved reclamation plan, not to exceed the bond amount. If permitted under State law, the indemnity agreement when under forfeiture shall operate as a judgment against those parties liable under the indemnity agreement.
6. (vi) The Division may require self-bonded applicants, parent and non-parent corporate guarantors to submit an update of the information required under paragraphs (i)
   1. (C) and (i)(D) of this section within 90 days after the close of each fiscal year following the issuance of the self-bond or corporate guarantee.
7. (vii) If at any time during the period when a self-bond is posted, the financial conditions of the applicant, parent or non-parent corporate guarantors change so that the criteria of paragraph (i)(C) and (iv) of this section are not satisfied, the permittee shall notify the Division immediately and shall within 90 days post an alternate form of bond in the same amount as the self-bond. Should the permittee fail to post an adequate substitute bond, the provisions of Section 3.02.4(2)(b)(v) shall apply.

(f) The Board, through rule making, shall recommend to the Secretary for approval of an alternative bonding system when it has determined such a system achieves the following objectives:

1. (i) The alternative assures completion of the reclamation plan if it had to be performed by the Board, through independent contractors, in the event of forfeiture or default of any permittee participating in the alternative at any time;
2. (ii) The alternative assures the ready availability of sufficient economic resources to complete the reclamation plan for all permit areas which may be in default at any time; and (iii) The alternative provides a substantial economic incentive for the permittee participating in the alternative to comply with all the reclamation requirements of the permittee's permit.

3.03 RELEASE OF PERFORMANCE BONDS

3.03.1 Criteria and Schedule for Release of Performance Bonds. 125(9)

(1) The Division, or the Board where an adjudicatory hearing is held pursuant to 3.03.2(6), shall release a performance bond, in whole or in part, when it is satisfied the reclamation covered by the bond or portion thereof has been accomplished as required by these Rules and according to the schedule set forth in (2) below. 125(9)

(2) The maximum amount under performance bonds applicable to an increment or a permit area which may be released shall be limited to the following schedule:

(a) Up to sixty percent of the applicable bond amount shall be released when the permittee successfully completes backfilling, regrading, and drainage control in accordance with the approved reclamation plan; 125(9)(a)

(b) Up to eighty five percent of the applicable bond amount shall be released upon the establishment of vegetation which supports the approved postmining land use and which meets the approved success standard for cover, pursuant to 4.15.8, meets applicable productivity standards for prime farmlands or alluvial valley floors pursuant to 3.03.1(3) (b), or croplands pursuant to 4.15.9. With the exception of prime farmlands, evaluation of vegetation establishment pursuant to this paragraph is based on statistically valid data collected during a single year of the liability period; and 125(9)(b) (c) The remaining portion of the bond amount shall be released when the permittee has successfully completed all surface coal mining reclamation operations in accordance with this approved reclamation plan, and the final inspection and procedures of 3.03.2 have been satisfied. This shall not be before the expiration of the period specified for revegetation responsibility in 3.02.3. 125(9)(c), 120(2)(t) (3) (a) When determining the amount of bond to be released, the Board or Division shall retain that amount of bond for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation at any time during the period specified for permittee responsibility for revegetation described in 3.02.3. 125(9)(b) (b) No more than sixty (60) percent of the bond shall be released so long as the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of premining levels as determined by baseline data or in excess of levels determined on adjacent nonmined areas; until soil productivity for prime farmlands has returned to equivalent levels of yield as nonmined land of the same soil type on the surrounding area under equivalent management practices as determined from the soil survey performed under 2.04.12 and 2.06.6 and the success determination methodology of 4.25.5(3)(a); or, on alluvial valley floors, until the essential hydrologic functions and agricultural productivity have been reestablished. 125(9)(b), 110(2)(q) 114(2)(e)(I)

(c) Where a silt dam is to be retained as a permanent impoundment as described in 4.05.6 or 4.05.9, more than sixty (60) percent of the bond may be released only so long as provisions for sound future maintenance by the permittee or the landowner have been made with the Division. 125(9)(b), 120(2)(h)

(d) The Division shall not release any amount under performance bonds applicable to a permit if such release would reduce the total remaining amount under performance bonds to an amount less than that necessary for the Division to complete the approved reclamation plan.

(e) When the permit includes an alternative postmining land use plan for industrial or commercial, or residential use, approved pursuant to 4.16.3, the Division shall require the maintenance of bond coverage throughout the applicable liability period, sufficient for the Division to achieve compliance with the standards for revegetation applicable to the pre mining land use under 4.15, in the event the alternative postmining land use is not developed in the event of bond forfeiture.

(4) No bond shall be fully released until all reclamation requirements of these Rules and the Act are fully met, and in no case shall the total bond amount applicable to a permit area be less than $10,000, in accordance with 3.02.2(3), until bond for the entire permit area is fully released. No acreage shall be released from the permit area until all surface coal mining and reclamation operations on that acreage have been completed in accordance with the approved reclamation plan. 125(9)(c) (5) Release of bond coverage for liability associated with temporary drainage and sediment control facilities including impoundments and conveying systems shall be authorized only after final inspection, acceptance, and approval by the Division. Such approval shall be granted based on determination by the Division that backfilling and grading, topsoiling, and reseeding of such facilities have been completed in compliance with the approved plan. Vegetative cover must be adequate to control erosion and similar to the reclaimed area or surrounding undisturbed area. Reclaimed temporary drainage control facilities shall not be subject to the extended liability period of 3.02.3(2) or the bond release criteria of 3.03.1(2).

3.03.2 Procedures for Seeking Release of Performance Bond.

(1) Bond release application and contents. 125(1)

The permittee may file a request with the Division for the release of all or part of a performance bond pursuant to the criteria and schedule described in 3.03.1. Prior to filing the request, the permittee shall send written notice of his intention to seek release from bond to adjoining property owners, surface owners, appropriate local government bodies, municipalities, regional planning commissions, boards of county commissioners, county planning agencies, sewage and water treatment authorities, and water conservancy and water conservation districts in the locality in which the surface coal mining operations took place.

Such a request shall include:

(a) Copies of the above written notices which must be submitted to the Division within (30) days of the filing of the request for release. The permittee is encouraged, however, to file these copies with the request to avoid any unnecessary inspections under 3.03.2(2) and delay. 125(1)

(b) As part of the bond release request, the permittee shall submit a copy of an advertisement to be placed by the permittee at least once a week for four successive weeks in a newspaper of general circulation in the locality of the surface coal mining operations. Such advertisement shall contain a notification of the precise location of the land affected, the number of acres of land for which the bond release is sought, the name of the permittee, permit number and date approved, the type and amount of the bond filed and the portion sought to be released, the type and appropriate dates of reclamation work performed, and a description of the results achieved as they relate to the permittee's approved reclamation plan. The advertisement shall also state that written comments, objections, and requests for a public hearing or informal conference may be submitted to the Division; provide the address of the Division; and give the date by which said comments, objections, and requests must be received. 125(1) (c) Within thirty (30) days after the last publication required in (b) above, the permittee shall submit to the Division proof of such publications.

(d) Upon submission of the proof of publication, the Division shall, within 10 days of receipt, review the application and determine if it is complete. The Division shall notify the operator of its decision within said 10 day period and if deemed incomplete, the operator shall be given the opportunity to amend, review, or otherwise make said application complete.

(e) A notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of the Act, the rules and the approved reclamation program. Such certification shall be submitted for each application or phase of bond release.

(2) Inspection and Evaluation by the Division.

Upon receipt of a complete request for the release of a performance bond the Division shall, within thirty (30) days or as soon thereafter as the Division determines weather conditions permit, conduct an inspection and evaluation of the reclamation work involved. Such evaluation shall consider, among other things, the results of inspections and monitoring conducted pursuant to 4.05.13 and 5.02, the degree of difficulty to complete any remaining reclamation, and whether pollution of surface or subsurface water is occurring, the probability of future occurrence of such pollution, and the estimated cost of abating such pollution. The written results of such inspection and evaluation shall be made immediately available for public inspection in the offices of the Division. "As soon thereafter as weather conditions permit" means that the Division must be able to evaluate properly the reclamation operations alleged to have been completed and, therefore, may be subject to seasonal limitations. The surface owner and agent or lessee, if any, shall be given reasonable notice of such inspection, and may participate with the Division in making the inspection. The Division may arrange with the permittee to allow access to the permit area, upon request by any person with an interest in bond release, for the purpose of gathering information relevant to the proceeding. 125(2)

(3) Objections to Requested Release. 125(3)

Any person with a valid legal interest which might be adversely affected by release of the bond, or any Federal, State, or local government agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to or comments upon the requested release from bond and file a request for an informal conference with the Division within thirty (30) days of the last publication of the notice required in (1)(b) above, or within thirty (30) days of the completed inspection, whichever is later. Upon receipt of any such objection or comments, copies thereof shall be transmitted to the permittee.

(4) Informal Conference on Objections to Requested Release. 125(8) Without prejudice to the rights of any person who might be adversely affected, the permittee, or the responsibilities of the Division pursuant to this Rule, the Division shall hold an informal conference as provided in 2.07.3(6) to resolve any written comments or objections on the request for release, when such a conference is requested.

(a) The purpose of an informal conference is to provide an opportunity to resolve disagreements prior to a proposed decision to release by the Division; and therefore, potentially avoid an adjudicatory hearing pursuant to 3.03.2(6).

(b) Notice of an informal conference shall be published in a newspaper of general circulation in the locality of the conference, at least two weeks before the date of the conference.

(c) The informal conference shall be held within thirty (30) days from the date of the notice; and shall conclude by the sixtieth day following the inspection and evaluation required in 3.03.2(2).

(d) The requirements of 24 4 105(6) C.R.S. (Colorado Administrative Procedures Act) shall not apply to the conduct of the informal conference.

(e) An electronic or stenographic record shall be made of the conference and the record maintained for access by the parties, until final release of the bond, unless recording is waived by all of the parties to the conference.

(5) Decision by the Division. 125(4)

(a) The Division shall provide written notification to the permittee, the surety, any person with an interest in collateral who has previously requested notification and any other interested parties of its proposed decision to release or not release all or part of the performance bond, together with written reasons for such proposed decision, recommended corrective actions necessary to secure release, and of their right to request a public hearing as described in 3.03.2(6) within sixty (60) days after the date of completion of the inspection and evaluation required in 3.03.2(2). Further, the Division shall publish written notice of its proposed decision once a week for two consecutive weeks in a newspaper of general circulation in the locality of the surface coal mining operation and shall immediately provide written notification of its proposed decision by certified mail to the board of county commissioners of the county in which the surface coal mining operation is located. The Division shall publish its proposed decision in its monthly mailing under 1.03.3(2).

(b) If no request for an adjudicatory hearing as provided in (6) below is received within the time periods specified therefore, the proposed decision of the Division shall be final. 125(5) (6) Adjudicatory Hearing on Proposed Decision to Release. 125(6) (a) The Board shall hold an adjudicatory hearing on the proposed decision of the Division upon the receipt of a written request for hearing from any person with a valid legal interest which might be adversely affected by the proposed decision of the Division or from the responsible officer or head of any Federal, State, or local government agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations. The request for an adjudicatory hearing must state with specificity the reasons why the hearing is requested and must be received within thirty (30) days of the first publication of the proposed decision by the Division. Prior to the adjudicatory hearing, the Board shall give reasonable notice to all interested parties of the time and place of the hearing and shall publish the date, time, and location of such hearing in a newspaper of general circulation in the locality of the surface coal mining operation for two consecutive weeks after receipt of a request for hearing and twice a week for two consecutive weeks before the hearing. In addition, the Board shall place notice of such hearing in its monthly mailing under 1.03.2(2). The Board shall hold an adjudicatory hearing on the proposed decision of the Division within thirty (30) days of the receipt of any written request for such hearing and shall render a written decision affirming or reversing, in whole or in part, the decision of the Division within thirty (30) days following the conclusion of the adjudicatory hearing. The hearing shall be held in the locality of the permit area, or the State capitol, at the option of the objector.

(b) The adjudicatory hearing on the proposed decision of the Division shall be conducted pursuant to 24 4 105, C.R.S. For the purpose of such hearing, the Board shall have the authority and is hereby empowered to administer oaths, subpoena witnesses or written or printed materials, compel the attendance of witnesses and production of the materials, and take evidence, including, but not limited to, inspections of the land affected and other surface coal mining operations carried on by the permittee in the general vicinity. A verbatim record of each adjudicatory hearing required by this Rule shall be made and a transcript made available on the request of any party to such hearing or by order of the Board. While the decision of the Board will be final, denial shall not preclude resubmission of an application for bond release. 125(7)

3.03.3 Termination of Jurisdiction

(1) The Division may terminate its jurisdiction over the reclaimed site of a completed surface coal mining and reclamation operation, or increment thereof, upon its determination in writing that all requirements of these Rules and the Act have been successfully completed and where a performance bond was required, the Division has made a final decision in accordance with Rule

3.03 to release the performance bond fully.

(2) The Division shall reassert jurisdiction over a site as referenced in 3.03.3(1) if it is demonstrated that the bond release or written determination referenced in 3.03.3(1) was based upon fraud, collusion, or misrepresentation of a material fact.

3.04 FORFEITURE OF PERFORMANCE BONDS

3.04.1 Criteria. 124(4)

(1) The Board shall declare all or an appropriate part of a performance bond for any permit as forfeited if the Board determines that any of the following circumstances exist:

(a) The permittee has violated any of the terms or conditions of the bond and has failed to take adequate corrective action;

(b) The permittee has failed to conduct the surface mining and reclamation operations in accordance with the Act, these Rules and the permit within the time required, and that it is necessary, in order to fulfill the requirements of the permit and the reclamation plan, to have someone other than the permittee correct or complete reclamation;

(c) The permit has been suspended or revoked, and neither the permittee nor the surety has assumed liability for completion of the reclamation work under a compliance schedule approved under 3.04.1(2); or (d) The permittee or surety has failed to comply with a compliance schedule approved under 3.04.1(2).

(2) The Board may withhold declaration of forfeiture if the permittee and the surety, if applicable, agree to a compliance schedule to correct the violations of the permit or to comply with the bond conditions. Such a compliance schedule shall provide for completion of reclamation within a reasonable time specified by the Board. The Board shall not agree to a compliance schedule if:

(a) The permittee has become insolvent, failed in business, been adjudicated a bankrupt, filed a petition in bankruptcy or for a receiver, or had a receiver appointed by any court; or (b) A creditor of the permittee has attached or executed a judgment against the permittee's equipment, materials, facilities at the permit area or on any collateral pledged to the State; and (c) The permittee cannot demonstrate or prove the ability to continue to operate in compliance with the Act, these Rules and the permit.

3.04.2 Procedures.

(1) In the event forfeiture of all or part of a bond is declared by the Board pursuant to 3.04, the Division shall:

(a) Send written notification by certified mail, return receipt requested, to the permittee, and the surety on the bond, if applicable, of the Board's determination to forfeit all or part of the bond and the reasons for the forfeiture, including a finding of the amount to be forfeited;

(b) Advise the permittee and the surety, if applicable, of any rights of appeal under State law that may be available from that determination; and (c) Proceed in an action for collection of the amount forfeited on the bond as provided by the applicable laws for the collection of defaulted bonds or other debts; and (d) If an appeal is filed, defend the action.

(2) The written determination to forfeit all or part of the bond including the reasons for forfeiture and the amount to be forfeited, shall be a final decision by the Board.

(3) The Board may declare forfeited any or all of a bond for an entire permit area in order to satisfy the requirements of 3.04.

(4) Proceeds of forfeited bonds shall be deposited by the Division in a separate reclamation account available to the Division. Said proceeds shall be used by the Division for reclamation of the area covered by the bond. Said reclamation shall include all costs and administrative expenses associated with the conduct of reclamation activities required to complete the applicable approved reclamation plan. Forfeited amounts received by the Division in excess of such costs and expenses shall be refunded to the permittee or to the surety, whichever is appropriate. 124(4) (5) Bond forfeiture may be avoided if the surety company can demonstrate the ability to complete the reclamation plan to the Division. No bond shall be totally released prior to successful completion of all reclamation under the terms of the permit, including the applicable liability periods of 3.02.3, and release in accordance with 3.03 has occurred.

(6) If the amount of the bond is insufficient to pay for the full cost of reclamation, the permittee shall be liable for the balance. The Division may complete necessary reclamation to the extent the forfeited funds permit and recover from the permittee, by means of civil proceedings and remedies all reclamation costs in excess of the forfeited amount to complete the remaining reclamation.

3.04.3 Determination of the Forfeiture Amount.

The Board shall either: 124(4)

(1) Determine the amount of the bond to be forfeited on the basis of the estimated cost to the Division or its contractor to complete the reclamation plan and other regulatory requirements in accordance with these Rules and the permit; or (2) Declare forfeited the entire amount of the bond for which liability is outstanding.

3.05 PERFORMANCE BOND REQUIREMENTS FOR COAL EXPLORATION

3.05.1 General Requirements.

(1) Exploration involving removal of 250 tons or less of coal. 117(1)(a) 113(1) (a) Upon a determination by the Division, as described in 2.02.2(3) and (4), that substantial disturbance of the natural land surface will occur by exploration involving the removal of 250 tons or less of coal, and before the initiation of that exploration, the applicant shall file with the Division, on a form prescribed and furnished by the Board, a performance bond payable to the State of Colorado. Coal exploration, as set forth in 1.04(22), includes disturbance resulting from the gathering of environmental data before beginning surface coal mining and reclamation operations.

(b) No person shall initiate or conduct coal exploration involving removal of 250 tons or less of coal prior to receipt of approval from the Division of a performance bond covering the surface acreage to be affected unless the Division has determined there will be no substantial disturbance of the natural land surface.

(2) Exploration involving removal of more than 250 tons of coal. 117(4),(5) (a) After receipt of written approval from the Division of coal exploration involving removal of more than 250 tons of coal as described in 2.02.4, and before the initiation of that exploration, the applicant shall file with the Division, on a form prescribed and furnished by the Board, a performance bond payable to the State of Colorado. 113(1) (b) No person shall initiate or conduct coal exploration involving removal of more than 250 tons of coal prior to the receipt of written approval of the Board or Division, and receipt of approval from the Division of a performance bond covering the surface acreage to be affected.

(3) The performance bond will be conditioned upon the faithful performance of an exploration operation in accordance with all the requirements of 4.21. The amount, duration, form, conditions, and terms of the bond shall conform to 3.05.2, 3.05.3, and 3.05.4. 113(1),(2) (4) The performance bond shall cover the area of land surface affected by the coal exploration.

(5) Liability on the performance bond shall continue until the requirements of 4.21 have been met and the person conducting the exploration operation is released from any further liability pursuant to 3.05.5.

(6) After the amount of the bond has been determined by the Division in accordance with 3.05.2, the applicant shall file with the Division the entire performance bond amount required for the proposed exploration.

(7) The Division, at its discretion, may allow for the filing of a statewide bond for coal exploration. Such a statewide bond must conform with 3.05.4 and would provide the State with the assurance of completion of the reclamation required by all the exploration activities carried out by that person in the State. The person filing such a statewide bond must otherwise comply with all the provisions of 3.05 and 2.02 for each area to be explored, including, but not limited to: filing a notice of intent or application for written approval, whichever is applicable; an activity report for each 180 day period; the final written report; and the certification of completion. The person filing such a bond must show the Division that his posted bond is sufficient to cover all the outstanding and proposed disturbance for which he is or will be liable.

3.05.2 Determination of Bond Amount.

(1) The amount of the bond shall be sufficient to assure the satisfactory reclamation of the exploration disturbance if the work had to be performed by the Board, through independent contractors, in the event of forfeiture.

The amount required for each exploration operation shall depend upon the reclamation requirements set forth in the narrative description for exploration involving removal of 250 tons or less of coal as described in 2.02.2(2), or in the exploration and reclamation operation plan for exploration involving removal of more than 250 tons of coal as described in 2.02.3(1), whichever is relevant. This amount shall reflect the probable difficulty of reclamation, giving consideration to such factors as topography, geology of the site, hydrology, and revegetation potential, as applicable.

(2) The amount of the bond shall be determined by the Division as part of the decision (2.02.2) on whether the proposed exploration will substantially disturb the natural land surface, when 250 tons or less of coal are removed, or as part of the decision (2.02.4) on written approval, when more than 250 tons of coal are removed. The determined bond amount shall be subject to review by the Board as described in 2.07.

(3) In order to assure an amount sufficient, the Division's determination shall be based on, but not be limited to:

(a) The estimated costs of the reclamation work described in (1) above;

(b) The additional estimated costs to the Board which may arise from applicable public contracting requirements or the need to bring personnel and equipment to the exploration area after its abandonment in the case of forfeiture; 113(1) (c) All additional estimated costs necessary, expedient, and incident to the satisfactory completion of the requirements of 4.21; 113(1)

(d) Such other cost information as may be required by or available to the Division. 113(1) (4) The amount of the performance bond required shall be adjusted by the Division from time to time for good cause in accordance with 3.02.2(4).

3.05.3 Period of Liability for Bond.

Liability under the bond(s) applicable to an exploration operation shall be for the duration of that operation, for a period coincident with the responsibilities of 4.21 and 2.02.6, and shall continue until release of the bond(s) in accordance with 3.05.5.

3.05.4 Form, Conditions and Terms of Bond.

(1) Form of the bond. The Board shall allow for the forms of bond described in 3.02.4.

(2) General terms and conditions.

(a) The bond shall be in an amount determined by the Division as described in 3.05.2.

(b) The bond shall be payable to the State of Colorado.

(c) The bond shall be conditioned upon the faithful performance of the exploration operation in accordance with all the requirements of 4.21, and shall cover the area of land surface affected by the coal exploration.

(d) The duration of the bond shall be for the time period specified in 3.05.3.

(e) Replacement of existing approved bond shall be the same as that for a permittee as described in 3.02.4(2).

3.05.5 Release of Bonds.

(1) Criteria for release of bonds. The Division, or the Board when an adjudicatory hearing is held pursuant to 3.05.5(2)(f), shall release a bond, in whole or in part, when it is satisfied the reclamation covered by the bond, or portion thereof, has been accomplished as required by 4.21, the additional performance standards and design requirements established by the Division pursuant to 4.21, and in the case of exploration involving removal of more than 250 tons of coal, the conditions of approval set by the Division pursuant to 2.02.4(3). 125 (2) Procedures for seeking release of bond.

(a) The person responsible for conducting the coal exploration operation may file a request with the Division for the release of all or part of a bond pursuant to the criteria described in (1) above.

(b) Upon the receipt of the request for release, the Division may, within thirty (30) days, or as soon thereafter as the Division determines weather conditions permit, conduct an inspection and evaluation of the reclamation work involved, similar in nature to that described in 3.03.2(2). "Weather conditions permit" means that the Division must be able to properly evaluate the reclamation alleged to have been completed, and, therefore, may request any reasonable information it deems necessary regarding the operations under the bond.

(c) The Division shall provide written notification to the person responsible for the exploration operation of its proposed decision to release or not release all or part of the bond together with a written explanation for such proposed decision within thirty (30) days of the request for release, the receipt of the information it has requested regarding the release, or within thirty (30) days of the inspection and evaluation, if any, as described in

1. (b) above, whichever is later. Further, the Division shall publish written notice of its proposed decision once a week for two successive weeks in a newspaper of general circulation in the locality of the exploration operation and shall immediately provide written notification of its proposed decision by certified mail to the board of county commissioners of the county in which the operation is located. If no request for an adjudicatory hearing as provided in (f) below is received within the specified time period, the proposed decision of the Division shall be final.

(d) Objections to the requested release or the proposed decision may be filed by any person, as described in 3.03.2(3), within thirty (30) days of the last publication of notice required in

1. (c) above. Upon receipt of any such objections, copies thereof shall be transmitted to the person responsible for the exploration operation.

(e) Without prejudice to the rights of any person who might be adversely affected, the person responsible for the exploration operation, or the responsibilities of the Division pursuant to this Rule, the Division shall hold an informal conference as described in 3.03.2(4) when such a conference is requested.

(f) The Board shall hold an adjudicatory hearing on the proposed decision of the Division, if a request for such hearing is received within thirty (30) days of the last publication of notice of the proposed decision by the Division or within thirty (30) days of the informal conference, if any, whichever is later, as set forth in 3.03.2(6), except that the notice of such hearing shall be published in a newspaper of general circulation in the locality of the exploration operation.

3.05.6 Forfeiture of Bonds. 117(5)

(1) The Board shall declare all or part of a performance bond for any exploration operation as forfeited if the Board finds that the person responsible for the exploration operation has:

(a) Violated any of the terms and conditions of the bond; or (b) Failed to comply with a compliance schedule approved under 3.05.6(2).

(2) The Board may withhold declaration of forfeiture if the person responsible and the surety, if applicable, agree to a compliance schedule to correct the violation or to otherwise comply with the bond conditions. Such a compliance schedule shall provide for completion within a reasonable amount of time specified by the Board. The Board shall not agree to a compliance schedule if:

(a) The person responsible has become insolvent, failed in business, been adjudicated a bankrupt, filed a petition in bankruptcy or for a receiver, or had a receiver appointed by any court; or (b) A creditor of the person responsible has attached or executed a judgment against his equipment, materials, exploration facilities or on any collateral pledged to the State; and (c) The person responsible cannot demonstrate or prove the ability to continue to operate in compliance with the Act and these Rules.

(3) Procedures.

(a) In the event forfeiture of all or part of a bond is declared by the Board pursuant to 3.05, the Division shall:

1. (i) Send written notification by certified mail, return receipt requested, to the person responsible for the exploration operation, and the surety on the bond, if applicable, of the Board's determination to forfeit all or part of the bond and the reasons for the forfeiture, including a finding of the amount to be forfeited;
2. (ii) Advise the person responsible and the surety, if applicable, of any rights of appeal under State law that may be available from that determination;
3. (iii) Proceed in an action for collection of the amount forfeited on the bond as provided by applicable laws for the collection of defaulted bonds or other debts; and (iv) If an appeal is filed, defend the action.

(b) The written determination to forfeit all or part of a bond, including the reasons for forfeiture and the amount to be forfeited, shall be a final decision by the Board.

(c) The Board may declare forfeited any or all of a bond for the entire area affected by an exploration operation, in order to satisfy the requirements of 3.05.

(d) Proceeds of forfeited bonds shall be deposited by the Division in a separate reclamation account available to the Division. Said proceeds shall be used by the Division for reclamation of the area covered by the bond. Said reclamation shall include all costs and administrative expenses associated with the conduct of the applicable reclamation activities required by 4.21. Forfeited amounts received by the Division in excess of such costs and expenses shall be refunded to the person responsible or to the surety, whichever is appropriate.

(4) Determination of the forfeiture amount.

The Board shall either:

(a) Determine the amount of the bond to be forfeited on the basis of the estimated cost to the Division or its contractor to complete the reclamation and other regulatory requirements in accordance with these Rules; or (b) Declare forfeited the entire amount of the bond for which liability is outstanding.

3.06 SPECIAL BONDING REQUIREMENTS FOR CONSTRUCTION OF MINE DRAINAGE CONTROL

FACILITIES

3.06.1 Bond Requirements.

Performance bond liability shall include construction of impoundments, conveying systems, and treatment facilities for mine drainage planned in accordance with 4.05.2, 4.05.8, and 4.05.10. Bond liability with respect to mine drainage shall extend to the construction and ultimate removal of facilities described in the permit application or reclamation plan as associated with the treatment of mine drainage. The bond amount determination made under 3.02.2 shall not include continuous treatment, monitoring, or potential unpredictable expenses resulting from mine drainage.

3.06.2 Bond Release.

Release of bond coverage for the liabilities described in 3.06.1 shall be authorized only after final inspection, acceptance, and approval by the Division, and shall not be subject to the extended liability period of 3.02.3(2) or the bond release criteria of 3.03.1(2). Procedures for seeking bond release shall be conducted in accordance with 3.03.2.

3.06.3 Applicability of Other Sections.

Except to the extent that provisions of other sections of Rule 3 conflict with 3.06, all other portions of Rule 3 shall apply to the mine drainage control facilities subject to Rule 3.06.1.