2 Colo. Code Regs. § 407-2-1

Current through Register Vol. 47, No. 16, August 25, 2024

Rule 2 CCR 407-2-1 - GENERAL PROVISIONS

1.01SCOPE

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.

1.03RESPONSIBILITIES

1.03.1The 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)

1.03.2The Board is responsible for:

(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 Public Health and Environment, 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.

1.03.3The 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.

1.03.4The 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. 132

(b) Such site specific agreements may include:

(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.

1.04DEFINITIONS

(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:

(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:

(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:

(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.

(1.1) "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 Reclamation, Mining and Safety in the Department of Natural Resources.

(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 sub irrigation 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 sub irrigation or flood irrigation. These uses do not include agricultural practices which do not benefit from the availability of water from sub irrigation 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 sub irrigation 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.

(11.1) "Applicant/Violator System" or "AVS" means an automated information system of applicant, permittee, operator, violation and related data OSM maintains to assist in implementing SMCRA.

(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.

(17.1) "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.

(20.1) "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 Rules 2.05.3(6)(a) and 4.08.

(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.

(22.1) "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 residential 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)

(30.1) "Control" or "controller", when used in Rules 2.03.4, 2.03 .5, 2.07 .6, 2.07.8, 2.07.9, and 2.11 refers to or means:

(A) A permittee of a surface coal mining operation;

(b) An operator of a surface coal mining operation; or

(c) Any person who has the ability to determine the manner in which a surface coal mining operation is conducted.

(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.

(31.1) "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.

(31.2) "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.

(31.3) "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 36-10-101et 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 Reclamation, Mining and Safety in the Department of Natural Resources.

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

(39.1) "Drinking, domestic or residential water supply" means water received from a well or spring and any appurtenant delivery system that provides water for direct human consumption or household use for which the user and/or owner has secured water rights or allocations recognized by state law. Wells and springs that serve only agricultural, commercial or industrial enterprises are not included except to the extent the water supply is for direct human consumption or human sanitation, or domestic use.

(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 Rule 1.11) 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.

(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 sub irrigation, 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.

(43.1) "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.

(46.1) "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)

(47.1) "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) Reserved.

(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)

(63.1) "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.

(70.1) "Knowing" or "Knowingly" means, with respect to individual civil or criminal 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. This definition is applicable to any person, including individual operators as well as persons authorizing, ordering or carrying out an act or omission on the part of a corporate permittee.

(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 use 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" land where the land use is a combination of Grazingland and Fish and Wildlife Habitat.

(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:

(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.

(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.

(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 sources" 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.

(k) "Grazingland" means lands where plant cover, dominated by adapted wildland species, is principally valuable for livestock forage, and management is primarily achieved by regulating the intensity of grazing and season of use.

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

(71.2) "Material subsidence damage", in the context of Rules 2.05.6(6) and 4.20, means:

(a) Any functional impairment of surface lands, features, structures or facilities;

(b) Any physical change that has a significant adverse impact on the affected land's capability to support any current or reasonably foreseeable uses or causes significant loss in production or income; or

(c) Any significant change in the condition, appearance or utility of any structure or facility from its pre-subsidence condition.

(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) "Noncommercial building" means any building, other than an occupied residential dwelling, that, at the time subsidence associated with underground mining operations occurs, is used on a regular or temporary basis as a public building or community or institutional building. Any building used only for commercial agricultural, industrial, retail or other commercial enterprises is excluded.

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

(79) "Occupied residential dwelling" and structures related thereto means any building or other structure that, at the time subsidence from underground mining operations occurs, is used either temporarily, occasionally, seasonally, or permanently for human habitation. This term also includes any building, structure or facility installed on, above or below, or a combination thereof, the land surface if that building, structure, or facility is adjunct to or used in connection with an occupied residential dwelling. Examples of such structures include, but are not limited to, garages; storage sheds and barns; greenhouses and related buildings; utilities and cables; fences and other enclosures; retaining walls; paved or improved patios, walks and driveways; septic sewage treatment facilities; and lot drainage and lawn and garden irrigation systems. Any structure used only for commercial agricultural, industrial, retail or other commercial purposes is excluded.

(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 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:

(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.

(83.1) "Own", "owner", or "ownership" as used in Rules 2.03, 2.07, and 2.11 (except when used in the context of ownership of real property) means, based on instruments of ownership or voting securities, being a sole proprietor or owning of record in excess of 50 percent of the voting securities or other instruments of ownership of an entity.

(83.2) "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.

(86.1) "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.

(93.1) "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 Natural Resources 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.

(103.1) "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 pre mining inventories.

(108.1) "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.

(110.1) "Replacement of water supply" means, with respect to drinking, domestic or residential water supplies contaminated, diminished, or interrupted by coal mining operations, provision of water supply on both a temporary and permanent basis equivalent to pre mining quantity and quality. Replacement includes provision of an equivalent water delivery system and payment of operation and maintenance costs in excess of customary and reasonable delivery costs for pre mining water supplies.

(a) Upon agreement by the permittee and the water supply owner, the obligation to pay such operation and maintenance costs may be satisfied by a one-time payment in an amount which covers the present worth of the increased annual operation and maintenance costs for the period agreed to by the permittee and the water supply owner.

(b) If the affected water supply was not needed for the land use in existence at the time of loss, contamination, or diminution, and if the supply is not needed to achieve the post mining land use, replacement requirements may be satisfied by demonstrating that a suitable alternative water source is available and could feasibly be developed. If the latter approach is selected, written concurrence must be obtained from the water supply owner.

(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.

(d) "Public road" means a street, road, or highway, and any related structure, that has been or will be built and maintained with appropriated funds of the United States; that has been or will be built and maintained with appropriated funds of the state of Colorado or any political subdivision thereof or that has been acquired by eminent domain or adverse use by the public, jurisdiction having been assumed by the state or any political subdivision thereof; that has been or will be dedicated to public use; and which meets road construction standards for other public roads of the same classification in the local jurisdiction.

(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.

(118.1) "Significant recreational, timber, economic, or other values incompatible with surface coal mining operations" means those values to be evaluated for their significance 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 other affected areas. Those values to be evaluated for their importance include:

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

(b) Timber management and silviculture;

(c) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce;

(d) Scenic, historic, archaeologic, aesthetic, fish, wildlife, plants or cultural interests.

(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. Natural Resources 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.

(126) "Sub irrigation" 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. Sub irrigation 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.

(c) Subsidence due to underground coal mining is not included in the definition of surface coal mining operations under Section 103(26) of the Act and this Rule, and therefore is not prohibited in areas protected under Rule 2.07.6 or 30 U.S.C. 1272(e) and Section 114(2) of the Act. Subsidence due to underground coal mining as it pertains to areas protected under Rule 2.07.6 or 30 U.S.C. 1272(e) and Section 114(2) of the Act is addressed in Rules 2.05.6 and 4.20 and Sections 111 and 121 of the Act.

(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" also referred to as "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).

(135.1) "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 post mining land use.

(137.1) "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 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 of a permittee

(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" 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.

(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 20° or 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 set of circumstances under which a person may, subject to Division approval, conduct surface coal mining operations on lands where Rule 2.07.6 or 30 U.S.C. 1272(e) would otherwise prohibit such operations. Possession of valid existing rights confers an exception from the prohibitions of Rule 2.07.6 or 30 U.S.C. 1272(e) only. A person seeking to exercise valid existing rights must comply with all other pertinent requirements of the act and these rules. For federal lands within the boundaries of national parks, National wildlife refuges, National System of Trails, the National Wilderness Preservation System, Wild and Scenic Rivers Systems, National Recreation Areas designated by Act of Congress or national forests, the federal definition of valid existing rights in 30 CFR § 761.5 shall apply. The federal definition of valid existing rights shall also apply to non-federal lands within the boundaries of national parks, National wildlife refuges, National System of Trails, Wild and Scenic Rivers Systems, or National Recreation Areas designated by Act of Congress.

(a) Except for roads "valid existing rights means":

(i) "Property Rights"- Those property rights in existence on August 3, 1977 or at the time the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e), 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. Applicable state statutory or case law will govern interpretation of documents relied upon to establish property rights, unless Federal law provides otherwise. If no applicable state law exists, custom and generally accepted usage at the time and place that the documents came into existence will govern their interpretation; and

(ii) The person proposing to conduct surface coal mining operations on such lands either:

(A) "Good Faith/All Permits"- Had been validly issued, all State and Federal permits and other authorizations necessary to conduct such operations on those lands, or a good faith effort to obtain all necessary permits and authorizations had been made, before the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e). At a minimum, an application must have been submitted for any permit required under these Rules, or

(B) "Needed for and Adjacent to"- Can demonstrate to the Division that the land is both needed for, and immediately adjacent to, an on-going surface coal mining operation for which all permits were obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e). To meet this standard, a person must demonstrate that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e). Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e) when the Division approved the permit for the original operation or when the good faith effort to obtain all necessary permits for the original operation was made. In evaluating whether a person meets this standard, the Division may consider factors such as:

(I) The extent to which coal supply contracts or other legal and business commitments that pre-date the time that the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e) depend upon use of that land for surface coal mining operations.

(II) The extent to which plans used to obtain financing for the operation before the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e) rely on the use of that land for surface coal mining operations.

(III) The extent to which investments in the operation before the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e) rely on the use of that land for surface coal mining operations

(IV) Whether the land lies within the area identified on the life-of-mine map submitted under Rule 2.10.3(1)(c) before the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e);

(b) For roads, A person who claims "valid existing rights" to use or construct a road across the surface of lands protected by Rule 2.07.6 or 30 U.S.C. 1272(e) must demonstrate that one or more of the following circumstances exist if the road is included within the definition of surface coal mining operations in Rule 1.04(132):

(i) A properly recorded right of way, recorded easement or a permit for a road recorded when the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e), and, under the document creating the right of way of easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations, or

(ii) Any other road in existence when the land upon which it is located came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e), and the person has a legal right to use the road for surface coal mining operations, or

(iii) A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Rule 2.07.6 or 30 U.S.C. 1272(e), or

(iv) Valid existing rights under paragraphs (a)(i) and (a)(ii) of this definition.

(149.1) "Violation", when used in the context of the permit application information or permit eligibility requirements of section 34-33-110 of the Act and related regulations, means:

(a) A failure to comply with an applicable provision of a Federal or State law or regulation pertaining to air or water environmental protection, as evidenced by a written notification from a governmental entity to the responsible person; or

(b) A noncompliance for which the Division has provided one or more of the following types of notice:

(i) A notice of violation under Rule 5.03.

(ii) A cessation order under Rule 5.03.

(iii) A final order, bill, or demand letter pertaining to a delinquent civil penalty assessed under Rules 5.04.3(5) and 5.05.

(iv) A bill or demand letter pertaining to delinquent reclamation fees owed under 30 CFR 870.

(v) A notice of bond forfeiture under Rule 3.04 when:

(A) One or more violations upon which the forfeiture was based have not been abated or corrected;

(B) The amount forfeited and collected is insufficient for full reclamation under Rule 3.04.2, the Division orders reimbursement for additional reclamation costs, and the person has not complied with the reimbursement order.

(C) The site is covered by an alternative bonding system approved under 30 CFR § 800.11(e), that system requires reimbursement of any reclamation costs incurred by the system above those covered by any site-specific bond, and the person has not complied with the reimbursement requirement and paid any associated penalties.

(149.2) "Violation, failure or refusal", for the purposes of Rule 5.05, means:

(a) A failure to comply with a condition of a permit, Division requirement, or Board order; or

(b) A failure or refusal to comply with any order issued under Section 123 of the Act.

(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) "Willful" or "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.

1.05APPLICABILITY

1.05.1General.

(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.

1.05.2Public Agencies, Public Utilities, and Public Corporations.

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.

1.06PETITIONS 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.

1.07PROCEDURES FOR VALID EXISTING RIGHTS DETERMINATIONS

(1) Valid existing rights determination requests for federal lands within the boundaries of national parks, National wildlife refuges, National System of Trails, the National Wilderness Preservation System, Wild and Scenic Rivers Systems, National Recreation Areas designated by Act of Congress or national forests shall be submitted directly to the Secretary of the Interior. Requests for determinations on non-federal lands may be submitted to the Division as described in Rule 2.07.6 and processed in advance of preparation and submission of a permit application or application for a boundary revision as follows:

(a) A "property rights" demonstration under Rule 1.04(149)(a)(i) must include:

(i) A legal description of the land to which the request pertains.

(ii) Complete documentation of the character and extent of the current interests in the surface and mineral estates of the land to which the request pertains.

(iii) A complete chain of title for the surface and mineral estates of the land to which the request pertains.

(iv) A description of the nature and effect of each title instrument that forms the basis of the request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities.

(v) A description of the type and extent of surface coal mining operations that the applicant claims the right to conduct, including the method of mining, any mining-related surface Activities and facilities, and an explanation of how those operations would be consistent with State property law.

(vi) Complete documentation of the nature and ownership, as of the date that the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), of all property rights for the surface and mineral estates of the land to which the request pertains.

(vii) Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains.

(viii) If the coal interests have been severed from other property interests, documentation that there has been notification and reasonable opportunity provided for the owners of other property interests in the land to which the request pertains to comment on the validity of the property rights claims.

(ix) Any comments received in response to the notification provided under paragraph (c)(i)(h) of this paragraph.

(b) A "good faith/all permits" demonstration under Rule 1.04, in addition to the information required by Rule 1.07(1)(a)(i), must also include:

(i) Approval and issuance dates and identification numbers for any permits, licenses, and authorizations obtained before the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(ii) Application dates and identification numbers for any permits, licenses, and authorizations which were submitted before the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(iii) An explanation of any other good faith effort made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(c) A "needed for and adjacent to" demonstration under Rule 1.04, in addition to the information required by Rule 1.07, must also include an explanation of how and why the land is needed for and immediately adjacent to the operation upon which the request is based, including a demonstration that prohibiting expansion of the operation onto that land would unfairly impact the viability of the operation as originally planned before the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(d) A demonstration under the standards for roads (Rule 1.04) must include documentation that:

(i) The road existed when the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), and the applicant has a legal right to use the road for surface coal mining operations;

(ii) A properly recorded right of way or easement for a road in that location existed when the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), and, under the document creating the right of way or easement, and under any subsequent conveyances, the applicant has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or

(iii) A valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(2) Initial review of request

(a) The division will conduct an initial review to determine whether the applicant's request includes all applicable components of the submission requirements of Rule 1.07 . This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

(b) If the request does not include all applicable components of the submission requirements of Rule 1.07, the Division will notify the applicant and establish a reasonable time for submission of the missing information.

(c) When the request includes all applicable components of the submission requirements of Rule 1.07, the Division will implement the notice and comment requirements of Rule 1.07(3).

(d) If the applicant does not provide information that the Division requests under Rule 1.07 within the time specified or as subsequently extended, the Division will issue a determination that the applicant has not demonstrated valid existing rights, as provided in Rule 1.07(4)(c)(i).

(3) Notice and comment requirements and procedures.

(a) When the request satisfies the completeness requirements of Rule 1.07, the applicant will publish a notice in a newspaper of general circulation in the county in which the land is located. This notice will invite comment on the merits of the request. The applicant must provide the Division with a copy of the published notice. Each notice must include:

(i) The location of the land to which the request pertains.

(ii) A description of the type of surface coal mining operations planned.

(iii) A reference to and brief description of the applicable standard(s) under the definition of valid existing rights in Rule 1.04(149).

(A) If the request relies upon the good faith/all permits standard or the needed for and adjacent standard in paragraph (b) of the definition of valid existing rights in Rule 1.04, the notice also must include a description of the property rights that the applicant claims and the basis for the claim.

(B) If the request relies upon the standard in paragraph (b)(ii) of the definition of valid existing rights in Rule 1.04, the notice also must include a description of the basis for the claim that the road existed when the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e). In addition, the notice must include a description of the basis for the claim that the applicant has a legal right to use that road for surface coal mining operations.

(C) If the request relies upon the standard in paragraph (b)(i) of the definition of valid existing rights in Rule 1.04(149), the notice also must include a description of the basis for the claim that a properly recorded right of way or easement for a road in that location existed when the land came under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e). In addition, the notice must include a description of the basis for the claim that, under the document creating the right of way or easement, and under any subsequent conveyances, the applicant has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

(D) If the request relies upon one or more of the standards in paragraphs (a), (b)(i), and (b)(ii) of the definition of valid existing rights in Rule 1.04(149), a statement that the Division will not make a decision on the merits of the request if, by the close of the comment period under this notice or the notice required by 1.07(3)(c), a person with a legal interest in the land initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the claim.

(iv) A description of the procedures that the Division will follow in processing the request.

(v) The closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice.

(vi) A statement that interested persons may obtain a 30-day extension of the comment period upon request.

(vii) The name and address of the Division office(s) where a copy of the request is available for public inspection and to which comments and requests for extension of the comment period should be sent.

(b) The Division will promptly provide a copy of the notice required under Rule 1.07(3)(a) to:

(i) All reasonably locatable owners of surface and mineral estates in the land included in the request.

(ii) The owner of the feature causing the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), and, when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e). For example, both the landowner and the State Historic Preservation Officer must be notified if surface coal mining operations would adversely impact any site listed on the National Register of Historic Places. As another example, both the surface owner and the National Park Service must be notified if the request includes non-Federal lands within the authorized boundaries of a unit of the National Park System.

(c) The letter transmitting the notice required under Rule 1.07 must provide a 30-day comment period, starting from the date of service of the letter, and specify that another 30 days is available upon request. At its discretion, the Division may grant additional time for good cause upon request. The Division need not necessarily consider comments received after the closing date of the comment period.

(4) How a decision will be made.

(a) The Division will review the materials submitted under Rule 1.07, comments received under Rule 1.07, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the Division will notify the applicant in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that the Division deems necessary to remedy the inadequacy.

(b) Once the record is complete and adequate, the Division will determine whether the applicant has demonstrated valid existing rights. The decision document must explain how the applicant has or has not satisfied all applicable elements of the definition of valid existing rights in Rule 1.04 . It will contain findings of fact and conclusions, and will specify the reasons for the conclusions.

(c) Impact of property rights disagreements. This paragraph applies only when an applicant's request relies upon one or more of the standards in paragraphs (a), (b)(i), and (b)(ii) of the definition of valid existing rights in Rule 1.04 .

(i) The Division will issue a determination that the applicant has not demonstrated valid existing rights if the property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The Division will make this determination without prejudice, meaning that the applicant may refile the request once the property rights dispute is finally adjudicated. This paragraph applies only to situations in which legal action has been initiated as of the closing date of the comment period under Rule 1.07(3)(a) or (c).

(ii) If the record indicates disagreement as to the accuracy of the applicant's property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the Division will evaluate the merits of the information in the record and determine whether the applicant has demonstrated that the requisite property rights exist under paragraph (a), (b)(i), or (b)(ii) of the definition of valid existing rights in Rule 1.04(149), as appropriate. The Division will then proceed with the decision process under Rule 1.07(4)(b).

(d) The Division will issue a determination that the applicant has not demonstrated valid existing rights if the applicant does not submit information that the Division requests under paragraph 1.07(2)(b) or 1.07(4)(a) within the time specified or as subsequently extended. The Division will make this determination without prejudice, meaning that the applicant may refile a revised request at any time.

(e) After making a determination, the Division will:

(i) Provide a copy of the determination, together with an explanation of appeal rights and procedures, to the applicant, to the owner or owners of the land to which the determination applies, to the owner of the feature causing the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e), and, when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of Rule 2.07.6(2)(d) or 30 U.S.C. 1272(e).

(ii) Publish notice of the determination in a newspaper of general circulation in the county in which the land is located.

(5) Administrative and judicial review. A determination that the applicant has or does not have valid existing rights is subject to Board Review under Rule 1.12, and administrative and judicial review under Sections 34-33-128 and 34-33-135 of the Act.

(6) Availability of records. The Division, when a request subject to notice and comment under Rule 1.07 is made, will make a copy of that request available to the public in the same manner as the Division, when acting as the regulatory authority, must make permit applications available to the public under Rule 2.07.5 . In addition, the Division will make records associated with that request, and any subsequent determination under Rule 1.07, available to the public in accordance with the requirements and procedures of Rule 1.09.

1.08NOTICE OF CITIZEN SUITS

(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 1.08.

(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 1.08 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.

1.09AVAILABILITY 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.

1.010COMPUTATION 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.

1.11RESTRICTIONS ON EMPLOYEE FINANCIAL INTERESTS

1.11.1Objective.

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)

1.11.2 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.

1.11.3Penalties.

(1) Any person who knowingly violates the provisions of Section 34-33-122(9), C.R.S., as adopted in 1.11.2(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.

1.11.4Who 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.

1.11.5 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.

1.11.6What 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.

1.11.7Gifts 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.

1.11.8Resolving 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.

1.11.9Appeals 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.

1.12REQUESTS TO THE BOARD

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.

1.13WATER RIGHTS

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.

1.14LIMITATION 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.

1.15DECLARATORY 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, 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.

1.16GUIDELINES

1.16.1General.

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.

1.16.2Subject 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.

1.16.3Adoption.

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 1.16.3(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.

1.16.4Use 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.

2 CCR 407-2-1