2 Colo. Code Regs. § 407-1-7

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

Rule 2 CCR 407-1-7 - DESIGNATED MINING OPERATIONS

7.1GENERAL PROVISIONS

7.1.1Exemption from Rule

Mining operations that are not Designated Mining Operations are exempt from this Rule 7, except as provided for in Rule 6.1, of these Rules.

7.1.2Effective Date and Applicability of Rule

Except for uranium mining operations, the effective date of this Rule 7.1 and all of its Subsections is July 1, 1994 (Section 34-32-116.5(3)(B), C.R.S. 1984, as amended). Any Operator/Applicant may voluntarily choose to comply with any part, or all, of this Rule at any time prior to July 1, 1994. As to uranium mining operations, all existing and future uranium mining operations are by law designated mining operations. Therefore, the procedure to determine whether a mining operation constitutes a designated mining operation is not applicable to uranium mining operations and such operations are subject to all designated mining operation requirements and regulations. However, such operations may request an exemption from designated mining operation status as provided in Rule 7.2.6 . If such exemption is granted, an in situ leach mining operator shall only be exempt from designated mining operation requirements; all in situ leach mining operation requirements shall continue to apply.

7.1.3Compliance Requirements

(1) The submission of an Environmental Protection Plan in conformance with Rule 6 and this Rule 7, does not relieve an Operator/Applicant of compliance with any other applicable Rule of the Board.

(2) In addition to submitting the Reclamation Plan required by Section 34-32-116, C.R.S. 1984, as amended, in compliance with Rule 6, all Designated Mining Operations, as determined pursuant to this Rule 7 or if an operation is a uranium mining operation, shall submit to the Office an Environmental Protection Plan, the content of which is specified by Rule 6, for Office review and approval. As to uranium mining operations, a permit applicant must include an Environmental Protection Plan in the application unless such applicant requests and obtains an exemption pursuant to Rule 7.2.6 at the time of submitting the application.

7.1.4Environmental Protection Plan Requirements

(1) The Environmental Protection Plan shall be submitted as an additional Exhibit to the application.

(2) All information supplied to comply with this Rule 7 shall be of a scale or nature that is compatible with all other Exhibits required in Rule 6.4.

7.2DETERMINATION OF DESIGNATED MINING OPERATIONS

7.2.1General Provisions

(1) The Office's determination of a Designated Mining Operation is based on the criteria described in the definition for Designated Mining Operation in Rule (1.1(19).

(2) For administrative purposes, such as Annual Fees and inspection schedules, the occurrence at a mine site of any activity that is a Designated Mining Operation activity will have the effect of making the entire mining operation a Designated Mining Operation, unless exempted under Rule 7.2.6.

(3) Such operations, so designated, must submit an Environmental Protection Plan as specified in Rule 6.4.21.

7.2.2Notification of Designation or Pending Designation by Office

(1) Any time after the effective date of this Rule 7.2.2, the Office may notify an Operator of the Office's determination that an existing or proposed mining operation is, or has a reasonable potential to be, a Designated Mining Operation. The monthly Agenda shall Notice those operations for which the Office may have any pending Designated Mining Operation considerations, and upon a determination that an operation so considered, is or is not a Designated Mining Operation, the Office shall provide Notice in the next regular monthly agenda.

(2) The Office's notice to an Operator/Applicant of such a determination shall be accompanied by factual statements including a review of the permit application, approved permit application, proposed or existing metallurgical process, known site geology or geochemistry, and the most recent site inspection.

7.2.3Operator/Applicant Concurs with Designation

(1) If an Operator, so notified, agrees with the Office that the existing operation is a Designated Mining Operation, the Operator shall notify the Office within thirty (30) days of the date of the notice by mail, of the Operator's concurrence.

(2) Upon receipt of the Office notice, the Operator of an existing mining operation shall:

(a) within sixty (60) days file a demonstration that the existing permit application for the operation contains the necessary elements of an Environmental Protection Plan, Rule 6.4.21. This showing by the Operator shall satisfy the applicable portions of Sections 34-32-116 and 116.5, C.R.S. 1984, as amended, and the applicable portions of Rules 3, 6 and 7. Upon notice that the existing permit application does not contain the elements of an Environmental Protection Plan, the Operator shall either:

(b) within one hundred and eighty (180) days submit an Environmental Protection Plan to the Office; or

(c) within thirty (30) days request a period longer than one hundred and eighty (180) days, not to exceed one (1) year, to file such plan based on a demonstration satisfactory to the Office that additional time is needed to prepare an Environmental Protection Plan.

(3) If an Operator/Applicant so notified agrees, the Operator/Applicant shall amend the application in accordance with Rule 7.2.

7.2.4Designation Disputes

(1) If an Operator/Applicant so notified does not agree with the Office that the existing or proposed mining operation is a Designated Mining Operation, the Operator/Applicant shall appeal, in writing, to the Office within thirty (30) days of the Office notice, setting forth the specific reasons for the Operator/Applicant's disagreement. The Operator/Applicant's appeal shall include all factual evidence to support its arguments.

(a) The Office shall meet with the Operator/Applicant as soon after the notification described in Rule 7.2.4 As possible to discuss the pending designation. If the Operator/Applicant does not satisfactorily demonstrate to the Office that the operation is not a Designated Mining Operation, the Office shall make a final determination that the operation is a Designated Mining Operation. The monthly Agenda shall Notice the final decision of the Office.

(b) The Operator/Applicant may appeal the Office's determination to the Board within thirty (30) days of the notification to the Operator/Applicant of such determination, and request a hearing before the Board on the designation by the Office pursuant to Rule 1.4.11 . Burden of proof to reverse the Office's determination shall be on the Operator/Applicant. Any person who demonstrates that they are directly and adversely affected or aggrieved by the Board's determination and whose interest is entitled to legal protection under the Act may participate as a party in the appeal of the Office's determination brought by the Operator/Applicant.

(2) If the Operator/Applicant appeals under Rule (1), above, the Office, after notice to the Operator/Applicant, shall schedule the matter for a Board Hearing.

(3) Any person who has relevant facts that were not known at the time of the initial Office determination that an operation is not a Designated Mining Operation, or where no such Office designation has occurred, may file a written complaint with the Office requesting a review of the operation to determine if it should be a designated mining operation. Based on the written request the Office may inspect the mining operation to determine Designated Mining Operation status. If the Office determines that the mining operation should be a designated Mining Operation, than the processes set forth in Rules 7.2.2., 7.2.3 and 7.2.4 shall apply.

7.2.5Existing Permit- Adequate for an Environmental Protection Plan

(1) If an existing permit contains the necessary elements of an Environmental Protection Plan, the Office or the Board will deem the existing permit to be adequate to comply with the Environmental Protection Plan requirement, (Section 34-32-116.5(4)(a), C.R.S. 1984, as amended).

(2) The Office may require that the Operator provide an Environmental Protection Plan, as an Exhibit separate from the existing Reclamation Plan and clearly marked as the Environmental Protection Plan. New information may not be required, provided the Plan complies with Rule 6.4.21 and Rule 7. The Environmental Protection Plan submission shall reference appropriate portions of the existing permit application, but shall be clear and concise and shall adequately address those issues that the Environmental Protection Plan is to address.

(3) If there are no substantive changes to approved on-site activities, the Office review shall be considered a Technical Revision to the Permit for the purpose of processing the Operator's request.

7.2.6Exemption from Designation

(1) If an Operator or Applicant demonstrates to the satisfaction of the Office or the Board, at the time of applying for a permit, or at a subsequent hearing, or after notification given pursuant to Rule 7.2.2 of this Rule, that designated chemicals will not be stored or used on-site for extractive metallurgical processing, toxic or acid-forming materials will not be exposed or disturbed in quantities sufficient to adversely affect human health, property or the environment; and that acid mine drainage, as defined in Rule 1, will not occur as a result of mining operations, the Board shall exempt such existing operations from the requirements of this Rule 7, which Rule implements Section 34-32-116.5, C.R.S. 1984, as amended.

(a) The operator of an existing designated mining operation may seek exemption from Designated Mining Operation status by filing an amendment application pursuant to Rule 1.10 . The amendment application must include the legal and factual basis for requesting the exemption.

(2) Nothing in the Board Exemption shall exempt an Operator where site conditions or circumstances change, or are not as presented by the Operator in an application or at a Board Hearing on the proposed or existing activities. In addition, an exemption under this Rule from designated mining operation requirements does not exempt the operation from any other applicable requirements. For example, an exemption shall not exempt an in situ leach mining operation from the requirements pertaining to in situ leach mining operations including but not limited to those contained in Rules 3.1.3, 3.1.7 and 6.4 . If an in situ leach mining operation is granted an exemption, it shall be referred to as a "110 ISL" operation or "112 ISL" operation (as applicable) rather than as a 112d operation.

7.2.7Appeal of Determination

Any person who demonstrates that they are directly and adversely affected or aggrieved by the Office determination of designation or non-designation and where such person's interest is entitled to legal protection under the Act may appeal the Office's determination to the Board pursuant to Rule 1.4.11 . The operator/applicant may be a party to the appeal.

7.2.8Plan Inadequacy

If the Office subsequently finds that the approved Environmental Protection Plan is not adequate to comply with the Act and these Rules for protection of human health or property or the environment in conformance with the duties of Operators as prescribed by the Act, the Office may direct the Operator/Applicant to propose a revision to the previously approved Plan within a reasonable time. Provided the Operator is operating in compliance with the approved permit, this Office directive to propose a change shall be considered a "possible problem" and not a "possible violation", unless the time period for submission of the revision is not met by the Operator.

7.2.9Time Extension for Filing the Environmental Protection Plan

Any Operator not granted relief, upon appeal of a designation as a Designated Mining Operation, shall submit an Environmental Protection Plan to the Office within ninety (90) days of issuance of the Board Order denying the appeal, unless granted additional time by the Board based on all the following:

(a) the good faith efforts of the Operator to achieve compliance;

(b) the complexity of the mining operation; and

(c) a demonstration that harm would not occur to the human health, property or the environment if the additional time were granted.

7.3ENVIRONMENTAL PROTECTION FACILITIES - DESIGN AND CONSTRUCTION REQUIREMENTS

7.3.1Construction

(1) Unless otherwise specified by the Office or Board, construction work shall be done in phases. No construction work shall begin on any subsequent phase of the facility without first obtaining Office acceptance.

(2) No liner of any kind shall be installed where climatic conditions are not within design or manufacture recommendations, and accepted by the Office.

(3) Such facilities shall be appropriately designed for their intended purpose and shall consider site specific conditions and on or off-site impacts to human health, property and the environment. Design capacities shall be sufficient to handle the design storm event for the area. The design storm event may be the two (2) year, 24-hour storm event up to the Probable Maximum Precipitation (PMP) event plus the ten (10) year, 24-hour storm event.

(4) It will be the responsibility of the Operator or Applicant to provide adequate Quality Assurance/Quality Control (QA/QC) or certification for any construction activities that are identified in the approved Environmental Protection Plan as specifically requiring QA/QC.

(5) No chemicals used in the extractive metallurgical process or toxic or acid-forming materials, uranium, uranium by-products or radionuclides shall be placed in constructed facilities until the Board or Office accepts the certification of the facility, or phase thereof, that precedes placement.

7.3.2Construction - Acceptance of Certification

(1) Written acceptance of certification for facilities under this Rule, shall be a separate acceptance from the approval granted a permit application or permit modification.

(2) Unless otherwise required by the Office, the Operator or Applicant must provide a certified verification by a professional engineer or other appropriately qualified professional that will confirm that the facility was constructed in accordance with the approved design plan.

(3) The Office shall review and accept or reject all such certifications.

7.3.3Cessation of Construction

(1) Barring an action by the Board, Cessation will only apply to the activities that are directly affected by the site-specific engineering step(s) that do not yet have certification.

(2) For any phase of certifiable inspection established pursuant to Rule 7.3.1 for which certification is not provided, as required in the permit, the Operator shall cease the construction of the environmental protection facility and will postpone the execution of subsequent phases of construction or operation until any required inspections have been performed and the requisite certification has been provided to and accepted by the Office.

(3) Cessation of construction shall not be deemed to apply to corrective construction actions nor shall it apply to construction of facilities that are designed, and that will serve, to correct the lack of certification.

(4) The Office has discretion to allow construction to proceed upon determination by the Office that proceeding is the best remedy.

7.4FACILITY REVIEW, CERTIFICATION AND INSPECTION

7.4.1General Provisions - Inspections and Certifications

(1) All construction work required to prepare a mine site facility to receive designated chemicals, toxic-forming or acid-forming materials that produce acid mine drainage as defined in these Rules, shall be subject to the following:

(a) the frequency and scheduling of Office inspections shall be determined by the Office based on a review of the permit application and in consultation with the Operator/Applicant; and

(b) the Office shall include a list of the required inspections in the approved permit.

(2) The Office may require the Operator to take corrective actions necessary to obtain and verify certification of a construction phase identified in the approved permit. The corrective actions so specified shall be those normally specified by a qualified professional.

7.4.2Phased Construction Inspections

(1) The Office shall give inspections of phased facility construction priority over other inspections and shall conduct such inspections as soon as possible to:

(a) meet the agreed upon construction schedule;

(b) to protect, as necessary, structures or facilities; and

(c) to facilitate orderly and efficient construction and operation.

(2) At a minimum, general inspection phases shall include the following, as applicable:

(a) foundation preparation inspection shall occur when the vegetation, topsoil and subsoil have been salvaged and the foundation has been configured, compacted to design specifications, and dressed to receive underdrain systems where required;

(b) earthen construction inspection shall occur at appropriate phases in the completion of any excavated slopes or embankment construction for facilities designed to hold or contain toxic or acid-forming materials or designated chemicals used in the extractive metallurgical process or acid mine drainage-forming materials;

(c) identification of all wet or seep areas;

(d) any areas of structural instability;

(e) under-drains or groundwater interceptor systems, after drain materials (including any piping and required filters) have been installed, but prior to covering of drains with soil;

(f) all phases of primary and secondary liner installation, including material processing, placement, and compaction of earthen materials, and placement and testing of any fabric seams and repairs;

(g) all leak detection systems, including bedding materials, piping, fluid collection and removal systems, and monitoring systems prior to covering with any material in such a manner to deny inspection access; and

(h) the protective armor and drainage layers (including placement and compaction of armor and drainage material), prior to loading with ore, mining waste, or tailings.

7.4.3Independent Reviews of Facility Design, Certification, and Inspections

(1) The Operator/Applicant may request, or the Board or Office may direct, that an Independent Reviewer conduct a review of facility design, certifications, and phased inspections of Environmental Protection Facilities or other technical designs as deemed necessary.

(2) Where such a request is made, the Operator/Applicant is responsible for all costs associated with the review, inspections and reports to the Office. The Operator or Applicant shall provide such reports to any person who was part of the formal hearing process.

(3) Where an Independent Reviewer is requested, the Operator or Applicant shall provide the Office a list of competent, private, Independent Reviewer candidates.

(a) The Office may choose or reject any or all Independent Reviewers based on their qualifications.

(b) The Office shall not be provided bid documents that specify the cost for requested services.

(c) The Independent Reviewer shall be a contractor to the Operator or Applicant, but shall be solely directed by the State of Colorado- Division of Reclamation, Mining and Safety-Office of Mined Land Reclamation.

(d) The Office shall have the responsibility of preparing that portion of the request for bid document that specifies the scope of work. The inspections and reviews shall be those identified in the Environmental Protection Plan.

(e) The Operator or Applicant shall have the responsibility of preparing the remaining sections of the request for bid document.

(f) The administration of the contract by the Office shall be through a Memorandum of Understanding between the Office and the Operator or Applicant.

(4) The Independent Reviewer shall be empowered to review and accept or reject quality assurance information generated by the QA/QC (Quality Assurance/Quality Control) entity, i.e., to perform Q/A on the QA/QC and certification (if generated) performed by the Operator's QA/QC representative.

(5) The Office or Board reserves the right to accept or reject the opinions of Independent Reviewers.

(6) The rejection of QA/QC based certifications by the Independent Reviewer shall be cause for requiring the Operator to undertake corrective action prior to continuing any additional construction activity on the facility being monitored that would jeopardize either the corrective action so specified or the planned purpose of the Environmental Protection Facility.

2 CCR 407-1-7

38 CR 05, March 10, 2015, effective 3/30/2015

42 CR 12, June 25, 2019, effective 7/15/2019

45 CR 12, June 25, 2022, effective 7/15/2022