2 Colo. Code Regs. § 407-2-7

Current through Register Vol. 47, No. 19, October 10, 2024

Rule 2 CCR 407-2-7 - DESIGNATING AREAS UNSUITABLE FOR SURFACE COAL MINING

7.01OBJECTIVES

The objective of this Rule is to implement the requirements of the Act by establishing: 108

(1) Procedures for consideration of petitions for the designation of areas as unsuitable for all or certain types of surface coal mining operations, for termination of such designations and for public participation in the petition process; and

(2) Responsibilities and minimum standards for obtaining, maintaining, and analyzing information on the effects of coal development.

7.02APPLICABILITY

The requirements of this Rule shall not apply to Federal lands or to lands: 126(4)

(1) On which surface coal mining operations were being conducted on August 3, 1977,

(2) Under a permit issued pursuant to these Rules, or

(3) Where substantial legal and financial commitments in such operations were in existence prior to January 4, 1977.

7.03RESPONSIBILITY

(1) Any person or duly authorized governmental agency may initiate the designation or termination process upon submittal of a petition in accordance with the requirements of 7.06. 126(2)(a)

(2) Any person may intervene and support or refute allegations of a petition in accordance with the requirements of 7.06.4(7). 126(2)(g)

(3) The Division shall:

(a) Process petitions and insure the requirements of this Rule are met; 126(2)(c)

(b) Obtain, maintain, and analyze information on areas covered by a petition and provide assistance to the Board in accordance with 7.06;

(c) Assist the Board in collecting data and maintaining a data base and inventory system established in 7.04; 130

(d) Provide information to the public on the petition procedures necessary to have an area designated unsuitable for all or certain types of surface coal mining operations or to have designations terminated; and

(e) Cooperate with and seek assistance from appropriate Federal, State, and local agencies, universities, and research institutions in this State as necessary to meet the requirements of this Rule. 130(1)

(4) The Board shall:

(a) Make decisions on the designation of areas unsuitable for surface coal mining operations, on termination of such decisions, and on frivolous petitions; 126(2)(c)

(b) Issue statements required by the designation procedure; and 126(2)(c),(e),(h) 126(3)

(c) Cause the formation of a data base and inventory system. 130(2)

7.04DATA INVENTORY

(1) The Board shall cooperate with and seek assistance from State, County, and Federal agencies and universities and research institutions in this State and work in close cooperation with local planning units in order to establish a data base and inventory system. 130(1)

(2) The Board may, at its discretion, appoint an advisory committee to assist it in establishing a data base and inventory system for surface coal mining operations. Such committee, if appointed, shall consist of experts in the areas of wildlife, plant ecology, natural areas, historic areas, reclamation, agriculture, coal geology, land management planning, and other areas as deemed necessary by the Board. 130(3)

(3) The data base and inventory system will provide information for the proper evaluation of the capacity of different land areas of the State to be reclaimed following surface coal mining operations and provide objective and scientific evaluation of fragile, historic, natural hazard, renewable resource lands, and lands listed in the Colorado natural areas registry or designated under the Colorado natural areas program. 130(1)(a) 130(1)(c)

(4) The data base and inventory system will be utilized by the Board and the Division for evaluation of petitions. The data base and inventory system will also be available for inspection by the public and those making land use planning decisions. Such inspection shall be free of charge and copying shall be available at a reasonable cost. 130(1)(b)

(5) The data base and inventory system will include such information relevant to the evaluation of criteria in 7.05 including, but not limited to, information received from sources listed in 1.03.2(4), the U.S. Fish and Wildlife Service and the State Historic Preservation Officer, and the agency administering Section 127 of the Clean Air Act, as amended (42 U.S.C. 7470et seq.) The data base and inventory system will also include sufficient information enabling preparation of statements of coal resources in accordance with 7.06.7 and information that becomes available from petitions, publications, experiments, permit applications, mining and reclamation operations, and other sources relevant to the purposes of the data base and inventory system. 130(2)

(6) The Board shall accept and seek grants and financial aid from the Federal government and from private agencies for carrying out the purposes of 7.04. 130(4)

7.05CRITERIA

(1) Upon petition pursuant to 7.06, the Board shall designate an area as unsuitable for all or certain types of surface coal mining operations if the Board determines that reclamation is not technically and economically feasible pursuant to the requirements of these Rules. 126(1)(a)

(2) Upon petition pursuant to 7.06, the Board may designate an area as unsuitable for all or certain types of surface coal mining operations if the Board determines that such operations will: 126(1)(b)

(a) Be incompatible with State or local land use plans or programs;

(b) Adversely affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific, or esthetic values or natural systems;

(c) Adversely affect renewable resource lands in which such operations could result in a substantial loss or reduction of long range productivity or water supply or food or fiber products, such lands to include aquifer and aquifer recharge areas; or

(d) Affect natural hazard areas in which such operations could substantially endanger life and property, such lands to include areas subject to frequent flooding and areas of unstable geology.

7.06PETITION PROCEDURE

7.06.1 Right to Petition.

Any person having an interest which is or may be adversely affected or any duly authorized governmental agency has the right to petition the Board to have an area designated as unsuitable for all or certain types of surface coal mining operations or to have such designation terminated.

7.06.2Petition Requirements: Designation.

A petition for designation shall be in writing, shall be directed to the Board, and shall contain the following information:

(1) The name, address, telephone number, and notarized signature of the petitioner.

(2) A brief description of the area covered by the petition, including applicable range and township numbers, location and size of such areas, and a U.S. Geological Survey topographic map showing the outline of the perimeter of the petitioned area. The petitioner shall make a good faith effort to identify, in the petition, the owners of record of surface and mineral interests in the land proposed for designation, except that a title search of the land ownership need not be performed. 126(2)(a)(II)

(3) The identification of the petitioner's interest which is or may be adversely affected. 126(2)(a)(III)

(4) Allegations of fact with supporting evidence which would tend to establish the area as unsuitable for all or certain types of surface coal mining operations. Such allegations shall include a general statement of how mining may adversely affect or has affected the people, land, air, water, or other resources of the area identified in 7.06.2(2). 126(2)(a)(IV)

7.06.3Petition Requirements: Termination.

A petition to terminate an unsuitability designation shall be in writing, shall be directed to the Board, and shall contain the following information:

(1) The name, address, telephone number, and notarized signature of the petitioner.

(2) A brief description of the area covered by the petition, including applicable range and township numbers, location, and size of such areas, and a U.S. Geological Survey topographic map showing the outline of the perimeter of the petitioned area. The petitioner shall make a good faith effort to identify in the petition, owners of record of the surface and mineral interest in the land proposed for termination, except that a title search of the land ownership need not be performed. 126(2)(a)(II)

(3) The identification of the petitioner's interest which is or may be adversely affected. 126(2)(a)(II)

(4) Allegations of fact, with supporting evidence not contained in the record of the proceeding in which the area was designated unsuitable, which would tend to establish the statements or allegations, and which statement or allegations indicate that the designation should be terminated based on: 126(2)(a)(IV)

(a) The nature or abundance of the protected resource or condition or on the basis upon which the designation was made pursuant to 7.05(2);

(b) Reclamation now technically and economically feasible, if the designation was based on criteria found in 7.05(1); or

(c) The resources or conditions not being affected by surface coal mining operations, or in the case of land use plans, not being incompatible with surface coal mining operations during and after mining in accordance with 7.05(2).

7.06.4Initial Processing, Recordkeeping, and Notification Requirements.

(1) Within 30 days of receipt of the petition, the Division shall determine whether the petition is complete and the Board shall by certified mail, notify the petitioner whether or not the petition is complete. A petition shall be considered complete when all the requirements of 7.06.2 or 7.06.3 are met. Once the requirements of 7.06.2 or 7.06.3 are met, no party shall bear any burden of proof, but each complete petition shall be considered and acted upon by the Board or Division pursuant to the procedures of this Rule. If the petition is determined to be incomplete, such petition shall be promptly returned to the petitioner and the notification shall contain the specific aspects of the petition which render it incomplete. The petitioner shall be provided an opportunity to amend, revise or otherwise make said petition complete. 126(2)(b)

(2) Within 30 days after the filing of a complete petition: 126(2)(c)

(a) The Division shall make a determination of whether:

(i) Any identified coal resources exist in the area covered by the petition;

(ii) The petition is frivolous; or

(iii) The area or portion thereof has been the subject of a previous unsuccessful petition to establish or terminate an unsuitability designation, and if so, whether any new factual allegations with supporting evidence not contained in such previous petition are included in the petition.

(b) If the Division determines that:

(i) There are no identified coal resources in the area covered by the petition, the petition shall be returned to the petitioner with the statement of the finding.

(ii) The petition is frivolous, then the Division shall recommend to the Board that the petition be dismissed and provide written notice to the petitioner of such recommendation.

(iii) The area or portion thereof has been the subject of a previous unsuccessful petition to establish or terminate an unsuitability designation and no new factual allegation with supporting evidence are contained in the petition, then the Division shall recommend to the Board that the petition be dismissed and provide written notice to the petitioner of such recommendation.

(3) At its next regularly scheduled meeting the following such recommendations by the Division, but in no event less than 30 days following notice to the petitioner of the Division's recommendation, the Board shall accept or reject the Division's determination after providing the petitioner and other interested parties an opportunity to be heard at such meeting, regarding the Division's recommendation. 126(2)(c)

(a) If the Board accepts the Division's recommendation of dismissal in accordance with 7.06.4(2)(b)(ii) or 7.06.4(2)(b)(iii), then the Division shall promptly return the petition with a written statement notifying the petitioner that the petition has been dismissed and state the reasons therefor. 126(2)(c)

(b) If the Board rejects the Division's recommendation of dismissal in accordance with 7.06.4(2)(b)(ii) or 7.06.4(2)(b)(iii), then the petition shall be subject to the requirements of this Rule.

(4) Within 30 days after the determination that a petition is complete, the Division shall circulate copies of the petition to, and request submissions or relevant information from, other interested governmental agencies, the petitioner, intervenors, owners of record of all surface and mineral interests in the land included in such petition, and other persons known to the Division to have an interest in the property. 126(2)(d)

(5) Within 30 days after the determination that a petition is complete, the Division shall:

(a) Notify the general public of the receipt of the petition and request submissions of relevant information by a newspaper advertisement placed once a week for two consecutive weeks in the locale of the area covered by the petition, and in the newspaper of the largest circulation in the State;

(b) The Division shall send a copy of the petition to the county clerk and recorder of each county affected by such petition for recording in the real property records of said county. The copy shall be available for inspection by the public. 126(2)(f)

(6) The Division shall include a list of pending petitions in the monthly mailings of the Division. 126(2)(d)

(7) After the filing of a petition and no later than 15 days before the public hearing, any person may intervene in the designation or termination proceeding by filing a petition to intervene. The petition to intervene shall contain allegations of facts and supporting evidence which tend to establish or refute the allegations contained in the subject petition, and the intervenor's name, address and telephone number. 126(2)(g)

(8) Beginning immediately after a complete petition is filed, the Division shall compile and maintain a record consisting of all documents relating to the petition filed with or prepared by the Division. The Division shall make the record available for public inspection. Such inspection shall be free of charge and copying shall be available at a reasonable cost during all normal business hours, at a central location of the county or multi-county area in which the area in the petition is located, and at the Division office.

7.06.5Petitions Affecting Permit Applications.

(1) In the event that a petition is submitted to the Division relating to the permit area of a permit application in which approval of the Board is pending, that petition shall not prevent the Board from issuing a decision on the permit application, if received after the completion of the informal conferences provided for 2.07.3(6) or, if no such informal conference was requested, more than 30 days after the final publication of notice provided for in 2.07.3(2). 126(2)(a)

(2) The Division shall notify the person who submits a petition of any application for a permit received which proposes to include any area covered by the petition.

7.06.6Procedures: Hearing Requirements.

(1) Within 10 months after receipt of a complete petition, the Board shall hold a public hearing in the locality of the area covered by the petition. 126(2)(e)

(2) In the event that all petitioners and intervenors stipulate agreement prior to the hearing, the petition may be withdrawn from consideration.

(3) The hearings shall be legislative and fact-finding in nature, with no cross-examination or sworn testimony. The hearings shall be kept informal, but there shall be an opportunity for representatives of the Board, the Division and the audience to ask questions of speakers. The Board shall make a tape of the hearing and prepare a verbatim transcript of the hearing.

(4) The Board shall give notice of the hearing by certified mail no less than one month before the scheduled date of the hearing to: 126(2)(e)

(a) The owners of all surface and mineral interests in the area covered by the petition;

(b) All petitioners and intervenors; and

(c) Local, State and Federal agencies that may have an interest in the decision of the petition.

(5) The notice shall be in writing and shall specify the time and place of the public hearing as well as the location where a copy of the subject petition may be examined. 126(2)(e)

(6) The Board shall publish, in a newspaper of general circulation in the area to be affected by the petition, a notice of the public hearing with a description of the area to be affected as well as the location where a copy of the petition may be examined. The newspaper advertisement shall be placed once a week for two consecutive weeks and once during the week prior to the scheduled date of the hearing. The consecutive weekly advertisement must begin at least one month before the scheduled date of the hearing. 126(2)(e)

(7) The Board may consolidate in a single hearing the hearings required for each of several similar or related petitions.

7.06.7 Pre-hearing Detailed Statement.

Prior to designating any area as unsuitable for surface coal mining operations and at least one month prior to the hearing required in 7.06.6, but in no case, less than 30 days after completion of the notice requirements in 7.06.4(4) and (5), the Board, with the assistance of the Division, shall, using existing and available information, prepare and make available for public inspection and copy at a reasonable cost a detailed statement on: 126(2)

(1) The potential coal resources of the area;

(2) The demand for coal resources; and

(3) The impact of such designation or termination on the environment, the economy, the supply of coal.

7.07DECISION PROCEDURES

(1) In reaching its decision on the designation of an area as unsuitable for all or certain types of surface coal mining operations, or termination of such designation, the Board shall use: 126(1)(a)

(a) The information contained in the data base and inventory system established in 7.04;

(b) Information provided by other governmental agencies;

(c) The detailed statement prepared in accordance with 7.06.7; and

(d) Any other relevant information submitted during the comment period.

(2) Designation decisions by the Board shall be based on criteria listed in 7.05 and shall be integrated as closely as possible with present and future land use planning, leasing, and regulation processes at the Federal, State, and local levels. 126(1)(c)

(3) Within 60 days after the public hearing, the Board shall issue a final written decision on the petition including: 126(2)(h)

(a) A detailed statement of reasons for the decision, noting specific criteria from 7.05;

(b) A detailed description of the types of surface coal mining operations for which an area is designated unsuitable;

(c) A map and appropriate description of any area designated as unsuitable for surface coal mining operations, from which it is possible to locate accurately on the ground the boundaries of the area being described.

7.08POST DECISION PROCEDURES

(1) Within 60 days after the public hearing is held, the Board shall simultaneously send the final written decision of 7.07(2) by certified mail to the petitioner, to every other party at the proceeding, to the Regional Director, and to the county clerk and recorder of each county affected by a petition for recording in the real property records of said county. 126(2)(h)

(2) The Division or Board shall not issue permits which are inconsistent with designations made pursuant to requirements of this Rule. 114(2)(d)

(3) The Division shall maintain a map of areas designated as unsuitable for all or certain types of surface coal mining operations.

(4) The Board shall make available to any person any information within its control regarding designations, including mineral or elemental content which is a potentially toxic-forming material in the environment but not including proprietary information on the quantity of coal or the analysis of the chemical or physical properties of the coal.

(5) Designation of an area as unsuitable for all or certain types of surface coal mining operations by the Board, shall not prohibit coal exploration operations in the area. Exploration operations on any area designated unsuitable for surface coal mining operations requires a permit issued in accordance with 2.02.3. 117(5)

7.09JUDICIAL REVIEW

(1) Any order or decision by the Board in a proceeding to establish or terminate an unsuitability designation under this Rule, or any failure of the Board or Division either to act within the time limits set forth in this Rule or to comply with other administrative requirements of this Rule, shall be subject to judicial review. 128

(2) In the event of judicial review of any order, decision, determination or administrative failure by either the Board or Division, the court shall follow the requirements for judicial review set out in Section 34-33-128 of the Act.

2 CCR 407-2-7