2 Colo. Code Regs. § 407-4-3

Current through Register Vol. 47, No. 20, October 25, 2024

Rule 2 CCR 407-4-3 - RECLAMATION PERFORMANCE STANDARDS, INSPECTION, MONITORING, AND ENFORCEMENT

3.1RECLAMATION PERFORMANCE STANDARDS

3.1.1Establishing Post-Mining Use

(1) In consultation with the Landowner, where possible, and subject to the approval of the Board or Office, the Operator shall choose how the affected lands shall be reclaimed. These decisions can be for forest, rangeland, pastureland, cropland, general agriculture, residential, recreational, industrial/commercial, developed water resource, wildlife habitat, or other uses.

(2) The results of these decisions shall be formulated into a Reclamation Plan, as specified in Rule 6.3.4 or 6.4.5, as required for the size and type of operation.

3.1.2Reclaiming Substituted Land

Reclamation shall be required on all the affected land except that the Operator may substitute land previously mined and owned by the Operator but not otherwise subject to the Mined Land Reclamation Act, or the Operator may reclaim an equal number of acres of any land previously mined, but not owned by the Operator, if the Operator has not previously abandoned unreclaimed mining lands. Such exchanges can be done only with the approval of the Board and the Owner of the land to be reclaimed.

3.1.3Time Limit and Phased Reclamation

All reclamation shall be carried to completion by the Operator with all reasonable diligence, and each phase of reclamation shall be completed within five (5) years from the date the Operator informs the Board or Office that such phase has commenced, or from the date the Office has evidence that mining or exploration has ceased, unless extended by the Board or Office. The 5-year period may be applied separately to each phase as it is commenced throughout the life of the mine.

3.1.4Public Use

On lands owned by the Operator, the Operator may permit the public to use the same for recreational purposes, in accordance with the Limited Landowner Liability Law contained in Article 41 of Title 33, C.R.S. 1984, as amended, except in areas where such use is found by the Operator to be hazardous or objectionable.

3.1.5Reclamation Measures - Materials Handling

The Operator shall set forth the measures that will be taken to meet all the following requirements:

(1) Grading shall be carried on so as to create a final topography appropriate to the final land use selected in the Reclamation Plan.

(2) When backfilling is a part of the plan, the Operator shall replace overburden and waste materials in the mined area and shall ensure adequate compaction for stability and to prevent leaching of toxic or acid-forming materials.

(3) All grading shall be done in a manner to control erosion and siltation of the affected lands, to protect areas outside the affected land from slides and other damage. If not eliminated, all highwalls shall be stabilized.

(4) All backfilling and grading shall be completed as soon as feasible after the mining process. The Operator shall establish reasonable timetables consistent with good mining and reclamation procedures.

(5) All refuse and acid-forming or toxic producing materials that have been mined shall be handled and disposed of in a manner that will control unsightliness and protect the drainage system from pollution.

(6) Any drill or auger holes that are part of the mining operation shall be plugged with non-combustible material, which shall prevent harmful or polluting drainage. Adits and shafts should be closed, and where practicable, backfilled and graded in a manner consistent with the post mine land use and shall comply with the provisions of the Act, Construction Material Rules and Regulations.

(7) Maximum slopes and slope combinations shall be compatible with the configuration of surrounding conditions and selected land use. In all cases where a lake or pond is produced as a portion of the Reclamation Plan, all slopes, unless otherwise approved by the Board or Office, shall be no steeper than a ratio of 2:1 (horizontal to vertical ratio), except from 5 feet above to 10 feet below the expected water line where slopes shall be not steeper than 3:1. If a swimming area is proposed as a portion of the Reclamation Plan, the slope, unless otherwise approved by the Board or Office, shall be no steeper than 5:1 throughout the area proposed for swimming, and a slope no steeper than 2:1 elsewhere in the pond.

(8) If the Operator's choice of reclamation is for agricultural or horticultural crops which normally require the use of farm equipment, the Operator shall grade so that the area can be traversed with farm machinery.

(9) An Operator may backfill structural fill material generated within the MLRB permitted area into an excavated pit within the permit area as provided for in the MLRB Permit. If an Operator intends to backfill inert structural fill generated outside of the approved permit area, it is the Operator's responsibility to provide the Office notice of any proposed backfill activity not identified in the approved Reclamation Plan. If the Office does not respond to the Operator's notice within thirty (30) days after receipt of such Notice by the Office, the Operator may proceed in accordance with the provisions of this Rule. The Operator shall maintain a Financial Warranty at all times adequate to cover the cost to stabilize and cover any exposed backfilled material. The Notice to the Office shall include but is not limited to:

(a) a narrative that describes the approximate location of the proposed activity;

(b) the approximate volume of inert material to be backfilled;

(c) a signed affidavit certifying that the material is clean and inert, as defined in Rule 1.1(22);

(d) the approximate dates the proposed activity will commence and end, however, such dates shall not be an enforceable condition;

(e) an explanation of how the backfilled site will result in a post-mining configuration that is compatible with the approved post-mining land use; and

(f) a general engineering plan stating how the material will be placed and stabilized in a manner to avoid unacceptable settling and voids.

(10) All mined material to be disposed of within the affected area must be handled in such a manner so as to prevent any unauthorized release of pollutants to the surface drainage system.

(11) No unauthorized release of pollutants to groundwater shall occur from any materials mined, handled or disposed of within the permit area.

3.1.6Water - General Requirements

(1) Hydrology and Water Quality: Disturbances to the prevailing hydrologic balance of the affected land and of the surrounding area and to the quantity or quality of water in surface and groundwater systems both during and after the mining operation and during reclamation shall be minimized by measures, including, but not limited to:

(a) compliance with applicable Colorado water laws and regulations governing injury to existing water rights;

(b) compliance with applicable federal and Colorado water quality laws and regulations, including statewide water quality standards and site-specific classifications and standards adopted by the Water Quality Control Commission;

(c) compliance with applicable federal and Colorado dredge and fill requirements; and

(d) removing temporary or large siltation structures from drainage ways after disturbed areas are revegetated and stabilized, if required by the Reclamation Plan.

(2) Earth dams, if necessary to impound water, may be constructed if the formation of such impoundments will not damage adjoining property or conflict with water pollution laws, rules or regulations of the federal government, the state of Colorado or with any local government pollution ordinances.

(3) All surface areas of the affected land, including spoil piles, shall be stabilized and protected so as to effectively control erosion.

3.1.7Groundwater- Specific Requirements

(1) Standards and conditions applicable to classified and unclassified groundwater.

(a) State-wide groundwater quality standards: Operations that may affect groundwater quality shall comply with all state-wide groundwater quality standards established by the Water Quality Control Commission (hereafter, the WQCC).

(b) Classified areas: Operations that may affect the quality of groundwater in a specified area that has been classified by the WQCC shall comply with the standards applicable to such specified area.

(c) Unclassified areas: Operations that may affect the quality of groundwater which has not been classified by the WQCC shall protect the existing and reasonably potential future uses of such groundwater.

(d) Water quality standards applicable to groundwater that has been classified, state-wide standards for certain pollutants, and interim narrative standards set by the WQCC shall supersede any numeric protection levels established for the subject pollutants pursuant to this Rule 3.1.7.

(2) Establishing permit conditions, including numeric protection levels, protective of unclassified groundwater uses.

(a) Pursuant to the procedures specified in Rule 3.1.7, permit conditions shall be established for each operation that may have a reasonable potential to adversely affect the quality of a specified area that has not been classified by the WQCC. Such permit conditions may be in the form of numeric protection levels, practice-based permit conditions, or both.

(b) Points of compliance for numeric protection levels shall be set pursuant to Rule 3.1.7(5).

(c) Permit conditions, whether practice-based or numeric protection levels, shall be established as follows:

(i) The permit conditions shall be protective of the existing and reasonably potential future uses of the groundwater that may be affected. The WQCC's groundwater quality table values (The Basic Standards For Ground Water 5 CCR 1002-41), shall be used as a guide in establishing the permit conditions.

(ii) Where ambient groundwater quality exceeds values for protection of existing and reasonably potential future uses of groundwater, such as groundwater table values or other numeric criteria, permit conditions shall be established to protect those uses against further lowering of groundwater quality.

(3) Procedures for establishing permit conditions to protect the quality of unclassified groundwater.

(a) New operations and modifications of existing permits: Any application for a new operation, or an application for a modification of an existing permit which modification has a reasonable potential to adversely affect the quality of unclassified groundwater, that is approved by the Office or the Board on or after September 1, 1993, shall include permit conditions pursuant to Rule 3.1.7(2).

(b) Existing operations: For operations subject to a permit issued before September 1, 1993, which permit is not the subject of an application or a modification as described in Rule 3.1.7, permit conditions shall be established as follows:

(i) Upon a determination that a violation of a permit provision affecting groundwater quality has occurred, the Board may order the Operator to submit an application to modify the permit to comply with Rule 3.1.7, and may set a reasonable schedule for submittal of such application. Nothing in this Rule shall be construed to limit the Board's authority under Section 34-32.5-124, C.R.S. 1984, as amended.

(ii) The Office shall follow the pre-enforcement procedure set out below before requiring an Operator who is in compliance with all permit provisions and regulation requirements related to groundwater quality to modify the permit. The Office may bring an enforcement action under Section 34-32.5-116(4), C.R.S. 1984, as amended, or earlier version thereof. Such enforcement action may result in a finding of a violation of that statutory provision upon finding that there is or may be a reasonable potential for degradation of groundwater quality that adversely affects existing or reasonable potential future uses of such groundwater. The Office shall follow the pre-enforcement procedure outlined below before bringing such an enforcement action:

(A) When the Office has reason to believe, based on evidence, that there is or may be a reasonable potential for degradation of groundwater quality that adversely affects uses, the Office shall notify the Operator of the evidence and of the possible need to modify the permit to include permit conditions that comply with Rule 3.1.7 . The notification may require the Operator to submit necessary information, and shall allow a minimum of ninety (90) days for the Operator to respond. Following a response from an Operator provided with notice under this Rule 3.1, the Office shall allow a reasonable period to negotiate appropriate permit conditions with the Operator pursuant to Rule 3.1.7(2).

(B) The Office may bring an enforcement action if the Operator fails to respond within the time specified, or the Office and the Operator do not negotiate appropriate permit conditions within a reasonable period of time, pursuant to Rule 3.1.7 . Upon finding a violation of the Act, or Rules promulgated thereunder, the Board may modify the permit to include groundwater protection provisions in compliance with Rule 3.1.7(2).

(C) The pre-enforcement procedures described in this Rule 3.1.7 Shall not apply if there is an imminent danger to the health, safety, and general welfare of the people of this state. In such a case, the Office may immediately initiate an enforcement action and may seek a cease and desist order. This provision shall not be construed to prevent the Water Quality Control Division from pursuing its remedies under Section 25-8-307, C.R.S. (1989).

(4) Procedures for establishing compliance with standards promulgated by the WQCC.

(a) Existing permits affecting groundwater, subject to existing groundwater quality standards: The Office shall provide notice to operations subject to a permit issued prior to January 31, 1994 if such operation has a reasonable potential to exceed groundwater quality standards promulgated by the WQCC. Such existing groundwater quality standards may include standards applicable to groundwater that has been classified by the WQCC, interim narrative standards and state-wide standards for certain pollutants. The notice shall provide the Operator with a reasonable opportunity to respond and modify the permit if necessary, to establish permit conditions adequate to implement such groundwater standards.

(b) WQCC standards promulgated after a permit is issued: If there is a reasonable potential to exceed groundwater quality standards promulgated after the permit is issued the Office shall provide the Operator with notice of the applicable groundwater quality standards. The Operator shall be afforded a reasonable opportunity to submit an application to modify the permit as necessary to implement such groundwater quality standards.

(c) Permit conditions established pursuant to Rules 3.1.7 Shall include a reasonable schedule of compliance. Such permit conditions may be in the form of numeric protection levels, practice-based permit conditions, or both.

(d) If an Operator has a reasonable potential to exceed groundwater quality standards promulgated by the WQCC, the Operator shall modify the permit as necessary to implement such standards in compliance with Rule 3.1.7, within a reasonable period of time after receiving a Notice issued pursuant to Rules 3.1.7 . If the Operator fails to do so the Office may initiate an enforcement action to enforce compliance with this Rule and establish any necessary permit conditions.

(e) Permits, or applications to modify a permit, shall not be approved unless such permit or modification includes conditions adequate to implement all groundwater quality standards promulgated by the WQCC applicable to such permit or modification.

(5) Any Operator, on a voluntary basis, may submit information concerning the protection of the quality of groundwater affected by the operation to the Office. The Operator may submit such information and a plan for monitoring, where appropriate, including monitoring at points of compliance, for the Office's consideration. The information submitted must satisfy the requirements of Rules 3.1.7 . Such voluntary submission by an Operator shall be considered a Technical Revision provided the submittal satisfies Rule 1.8.

(6) Points of Compliance:

(a) In order to evaluate protection afforded groundwater quality, comply with groundwater standards, or to demonstrate compliance with permit conditions established by the Office to protect groundwater quality, one or more points of compliance shall be established. Through incorporation into a permit and on a schedule approved by the Office, an Operator shall comply with groundwater quality standards established by the Water Quality Control Commission at points of compliance.

(i) Where the Water Quality Control Commission has not established standards, then any permit condition established by the Board or Office to protect groundwater quality shall be demonstrated to be met at points of compliance or as specified in the approved permit.

(b) Where groundwater quality standards have been established, the point of compliance shall be established according to the following criteria:

(i) for existing facilities at which an adverse impact to groundwater quality could occur, the point of compliance will be set as follows:

(A) at some distance hydrologically down-gradient from the facility or activity that is causing, or which has the potential to cause, the contamination, and selecting that distance closest to the facility or activity, considering the technological feasibility of meeting the requirements for protecting water quality:

(I) a specified distance, as determined by Rule 3.1.7(6)(b)(i)(B) below;

(II) the hydrologically down-gradient limit of the area in which contamination has been identified; or

(III) the facility permit boundary.

(B) In determining a specified distance the Office shall take into consideration the following factors;

(I) the classified use, established by the Water Quality Control Commission, for any groundwater or surface water which could be impacted by contamination from the facility;

(II) the geologic and hydrologic characteristics of the site, such as depth to groundwater, groundwater flow direction and velocity, soil types, surface water impacts, and climate;

(III) the toxicity, mobility, and persistence in the environment of the contaminants used or stored at the facility and which could reasonably be expected to be discharged from the facility;

(IV) the potential of the site as an aquifer recharge area; and

(V) recommendations submitted by the facility owner or Operator, including technical and economic feasibility.

(ii) For any new facility or new activity which may cause an adverse impact on groundwater quality, the point of compliance will be set as follows:

(A) unless modified by the Office as specified in Rule 3.1.7 below, the point of compliance will be set at the hydrologically down-gradient limit of the area below the facility or activity potentially impacting groundwater quality.

(B) The point of compliance determined in Rule 3.1.7 Above may be modified by the Office on a case-by-case basis with consideration of the following factors:

(I) the classified use, established by the Water Quality Control Commission, for any groundwater or surface water which could be impacted by contamination from the facility;

(II) the geologic and hydrologic characteristics of the site, such as depth to groundwater, groundwater flow direction and velocity, soil types, surface water impacts, and climate;

(III) the toxicity, mobility, and persistence in the environment of contaminants used or stored at the facility which could reasonably be expected to be discharged from the facility;

(IV) the potential of the site as an aquifer recharge area; and

(V) recommendations submitted by the facility owner or Operators including technical and economic feasibility.

(7) Groundwater Monitoring:

(a) For existing operations through permit modifications, and for new permit applications, a groundwater monitoring program shall be required on a case-by-case basis where an adverse impact on groundwater quality may reasonably be expected.

(b) If groundwater monitoring is required, the Operator shall include the following information as part of a permit application or permit modification to an existing permit:

(i) a map that accurately locates all proposed groundwater sample points and any locations that are proposed as a point of compliance;

(ii) the method of monitoring well completion where monitoring wells are required;

(iii) method of sampling, frequency of sampling and reporting to the Office;

(iv) parameters analyzed, water quality analysis methods, and quality control and quality assurance methods;

(v) formations, aquifers or strata to be sampled;

(vi) identify the potential sources of groundwater contamination that will be monitored by each point of compliance monitoring point;

(vii) a time-schedule for implementation; and

(viii) ambient groundwater quality data sufficient to characterize potentially impacted groundwater quality.

(8) Release of Reclamation Liability: An Operator shall demonstrate, to the satisfaction of the Office, that reclamation has been achieved so that existing and reasonably potential future uses of groundwater are protected.

(9) An Operator must provide the Office a written report within five (5) working days when there is evidence of groundwater discharges exceeding applicable groundwater standards or permit conditions imposed to protect groundwater quality when these other conditions are explicitly identified in the permit as requiring such notice.

For additional performance standards related to water, see Rules 3.1.5 and 3.1.6.

3.1.8Wildlife

(1) All aspects of the mining and reclamation plan shall take into account the safety and protection of wildlife on the mine site, at processing sites, and along all access roads to the mine site with special attention given to critical periods in the life cycle of those species which require special consideration (e.g., elk calving, migration routes, peregrine falcon nesting, grouse strutting grounds).

(2) Habitat management and creation, if part of the Reclamation Plan, shall be directed toward encouraging the diversity of both game and non-game species, and shall provide protection, rehabilitation or improvement of wildlife habitat. Operators are encouraged to contact Colorado Parks and Wildlife and/or federal agencies with wildlife responsibilities to see if any unique opportunities are available to enhance habitat and/or benefit wildlife which could be accomplished within the framework of the Reclamation Plan and costs.

3.1.9Topsoiling

(1) Where it is necessary to remove overburden in order to mine the construction material, topsoil shall be removed and segregated from other spoil. If such topsoil is not replaced on a backfill area within a time short enough to avoid deterioration of the topsoil, vegetative cover or other means shall be employed so that the topsoil is protected from erosion, remains free of any contamination by toxic or acid-forming material, and is in a usable condition for reclamation.

(2) Where practicable, woody vegetation present at the site shall be removed from or appropriately incorporated into the existing topsoil prior to excavation within the affected areas. The Operator should make a reasonable effort to ensure that existing vegetation is put to a beneficial use such as firewood, mulching, lumber, etc.

(3) Topsoil stockpiles shall be stored in places and configurations to minimize erosion and located in areas where disturbance by ongoing mining operations will be minimized. Such stockpile areas must be included in the affected areas and subject to all reclamation requirements. The Board may require immediate planting of an annual and/or perennial on topsoil stockpiles for the purpose of stabilization.

(4) Once stockpiled, the topsoil shall be rehandled as little as possible until replacement on the regraded, disturbed area. Relocations of topsoil stockpiles on the affected land require Board or Office approval. Approval in most cases would be granted by way of technical revision.

(5) The Operator shall take measures necessary to assure the stability of replaced topsoil on graded slopes such as roughing in final grading to eliminate slippage zones that may develop between the deposited topsoil and heavy textured spoil surfaces.

(6) If, in the discretion of the Board or Office, such existent topsoil is of insufficient quantity or of poor quality for sustaining vegetation, and if other materials can be shown to be more suitable for vegetation requirements, then the Operator shall remove, segregate, and preserve in a like manner such other materials which are best able to support vegetation.

(7) When growing media is replaced, it shall be done in as even a manner as possible. Fertilizer or other soil amendments shall be added, if required in the Reclamation Plan or as the soil tests indicate.

(8) Vegetative piles shall be removed from the area or utilized in accordance with the Reclamation Plan.

3.1.10 Revegetation

(1) In those areas where revegetation is part of the Reclamation Plan, land shall be revegetated in such a way as to establish a diverse, effective, and long-lasting vegetative cover that is capable of self-regeneration without continued dependence on irrigation, soil amendments or fertilizer, and is at least equal in extent of cover to the natural vegetation of the surrounding area. Except for certain post mining land uses approved by the Board or Office, the use of species native to the region shall be emphasized. Greater emphasis on non-native species may be proposed for intensively managed forestry and range uses.

(2) If the Operator's choice of reclamation is forest planting, they may, with the approval of the department, select the type of trees to be planted. If the Operator is unable to acquire sufficient planting stock of desired tree species from the state or elsewhere at a reasonable cost, they may defer planting until planting stock is available to plant such land as originally planned, or they may select an alternate method of reclamation.

(3) If the Operator's choice of reclamation is for rangeland, the land shall be restored to slopes commensurate with the proposed land use and shall not be too steep to be traversed by livestock. The area may be seeded either by hand, or power, or by the aerial method.

(4) The revegetation plan shall provide for the greatest probability of success in plant establishment and vegetation development by considering environmental factors such as seasonal patterns of precipitation, temperature and wind; soil texture and fertility; slope stability; and direction of slope faces. Similar attention shall be given to biological factors such as proper inoculation of legume seed, appropriate seeding and transplanting practices, care of forest planting stock, and restriction of grazing during initial establishment. The Board or Office, in consultation with the Landowner and the local Conservation District, if any, shall determine when grazing may start.

(5) To insure the establishment of a diverse and long-lasting vegetative cover, the Operator shall employ appropriate techniques of site preparation and protection such as mechanical soil conditioning by discing and ripping; mulching; soil amendments and fertilizers; and irrigation.

(6) Methods of weed control shall be employed for all prohibited noxious weed species, and whenever invasion of a reclaimed area by other weed species seriously threatens the continued development of the desired vegetation. Weed control methods shall also be used whenever the inhabitation of the reclaimed area by weeds threaten further spread of serious weed pests to nearby areas.

(7) When necessary, fire lanes or access roads shall be constructed through the area to be planted. These lanes or roads shall provide access for planting crews, supervision and inspection.

(8) Planting required for reclamation may be delayed, through the period of use related to places of refuse disposal, haulage roads and road cuts. Normal stabilization of surfaces is required. No planting is required:

(a) on any affected land being used or proposed to be used by the Operator for the deposit or disposal of refuse until after the cessation of operations productive of such refuse;

(b) on lands proposed for future mining;

(c) within depressed haulage roads or final cuts while such roads or final cuts are being used or made;

(d) where permanent pools or lakes have been formed; and

(e) on any affected land so long as the chemical and physical characteristics of the surface and immediately underlying material of such affected land are toxic, deficient in plant nutrients, or composed of sand, gravel, shale, or stone to such an extent as to seriously inhibit plant growth and such condition cannot feasibly be remedied by chemical treatment, fertilization, replacement of overburden, or like measures.

(9) Where adverse characteristics of the surface, not feasibly remedied by artificial measures, would seriously inhibit plant growth, planting may be delayed or provided on substitute acres, depending upon natural corrective processes over a ten (10) year period.

3.1.11 Buildings and Structures

If the affected land is owned by a legal entity other than any local, state, or federal entity, any buildings or structures including those constructed or placed on the affected lands in conjunction with the mining operations or which are historic structures as determined by the State Historic Preservation Office may, at the option of the Operator and Landowner and with the approval of the Board, remain on the affected land after reclamation if such buildings or structures will not conflict with the post-mining land use and the structures conform to local building and zoning codes.

3.1.12Signs and Markers

(1) At the entrance of the mine site the Operator shall post a sign, which shall be clearly visible from the access road, with a minimum size equaling one hundred and eighty-seven (187) square inches, such as eleven (11) inches in height and seventeen (17) inches in width, with appropriate font size, with the following:

(a) the name of the Operator and the operation name;

(b) a statement that a reclamation permit for the operation has been issued by the Colorado Mined Land Reclamation Board; and

(c) the permit number.

(2) The boundaries of the affected area will be marked by monuments or other markers that are clearly visible and adequate to delineate such boundaries.

(a) for Limited Impact 110 Operations and Special 111 Operations the permit boundary for the purposes of this Rule shall be considered the affected area;

(b) for Regular 112 Reclamation Operations the area proposed to be disturbed by mining operations for which a Financial Warranty and Performance Warranty have been posted shall be the affected area.

(3) The Office may approve an alternative plan for identifying the boundaries of the affected land if the Operator includes such a plan in the permit application.

3.1.13Spill Reporting

The Operator shall notify the Office of a spill of any toxic or hazardous substance, including spills of petroleum products, that occurs within the mined land permit area or area encompassed by a Notice of Intent and which would be required to be reported to any Division of the Colorado Department of Public Health and the Environment, the National Response Center, the Colorado Emergency Planning Commission, any local Emergency Planning Commission, local Emergency Planning Committee, or the State Oil Inspector. The Operator shall:

(1) within twenty-four (24) hours of the time the spill is reported to any other agency(ies) with jurisdiction over the spill, notify the Division of Reclamation, Mining and Safety, via phone or email;

(2) include in the notice any relevant information known at the time contact is made with the Office that would assist the Office in assessing spill seriousness, such as:

(a) operation name, DRMS permit number and name of person reporting the spill,

(b) telephone number of a responsible company official for the Office staff to use as a contact,

(c) date and time of spill,

(d) type of material spilled (CAS number if applicable, from the material safety data sheet (MSDS) form),

(e) estimate of the amount spilled, whether any material has left the permit area, and where the spilled material went, and

(f) initial measures taken to contain and clean up spill.

(3) copy the Office on any correspondence and/or written reports provided to other agencies. Supplement those reports if necessary to include the information outlined in Rule 3.1.13(2).

(4) For permits approved prior to the effective date of these Rules, the requirements of Rule 3.13 shall supersede stipulations to permits regarding spill reporting.

3.2INSPECTION AND MONITORING

(1) Entry upon lands for inspection: the Board or Office may enter upon the lands of the Operator at all reasonable times for the purpose of inspection to determine whether the provisions of the Act and these Rules have been complied with.

(2) Persons authorized under the Act and these Rules to conduct inspections shall, prior to entry onto any lands, notify the Operator of their intent to enter and inspectors shall comply with all federal, state, local and company safety rules.

(3) Any state official or employee of the Office shall promptly report to the Board any possible violation of a permit, law or these Rules of which they have knowledge, whether obtained from personal inspection or from written reports on mining operations.

(4) Upon an Office determination of a possible violation, the Office shall issue a Notice of Possible Violation(s), and shall mail such notice by certified mail, return receipt to the last known address of the Permittee. The Office shall schedule the matter of possible violation(s) for a Board Hearing according to the provisions of Rules 3.3.1 or 3.3.2.

(5) All inspections shall include a written report which:

(a) describes every possible violation of the permit, law, or these Rules;

(b) is personally signed by the Inspector; and

(c) is mailed within a reasonable time to the mine office, or other suitable location designated by the Operator.

(6) A report of how and when a violation is resolved and a report of any subsequent inspection to verify compliance shall be filed.

(7) All operations applying for a regular permit, conversion, or amendment thereto shall be inspected after the application is filed and prior to Board consideration. Other Applicants shall be so inspected as time and staff resources permit.

(8) Mining operations shall be inspected a sufficient number of times each year to ensure compliance with the permit, law, and these Rules. The frequency of inspection shall be determined by the extent of the operation, rate of mining, degree of actual or potential environmental impact, and the Operator's past record of compliance.

(9) The Board or Office is authorized to inspect any ongoing Exploration Operation or any Exploration Operation prior to the request for release of Performance and Financial Warranties, in order to determine compliance with these Rules.

3.3ENFORCEMENT AND PROCEDURES

3.3.1Operating Without a Permit or Conducting Exploration Without a Notice of Intent - Penalty

(1) Whenever an Operator or Person conducting extraction or exploration fails to obtain a valid Permit or file a Notice of Intent under the provisions of the Act, the Board or the Office may issue an immediate Cease and Desist Order. Concurrently with the issuance of such an Order, the Board or the Office may seek a restraining order or injunction pursuant to Rule 3.3.3 . The Operator or Person conducting extraction or exploration shall be afforded an opportunity for a hearing before the Board. The Office shall schedule the matter for a hearing before the Board no sooner than thirty (30) days after issuance of such Cease and Desist Order; except that an earlier date for a hearing may be requested by the alleged violator and the hearing must be set no later than the next succeeding Board meeting if requested by the alleged violator.

(2) Operators who mine substantial acreage beyond their approved permit boundary may be found to be operating without a permit. Any Operator who operates without a permit shall be subject to a civil penalty of not less than one thousand dollars ($1,000) per day nor more than five thousand dollars ($5,000) per day for each day the land has been affected. Such penalties shall be assessed for a period not to exceed three hundred and sixty-five (365) days.

(3) Any Person conducting exploration without filing a Notice of Intent as required under the Act shall be subject to a civil penalty of not less than fifty dollars ($50) nor more than two hundred dollars ($200) per day for each day the land has been affected. Such penalties shall be assessed for not less than one (1) day and not more than sixty (60) days.

(4) In addition to the civil penalties imposed in Rules 3.3.1, the Board shall also assess a civil penalty in an amount not less than the amount necessary to cover the Office's costs expended in investigating the alleged violation.

3.3.2Operating With a Permit or Conducting Exploration With a Notice of Intent- Failure to Comply

(1) Whenever the Board or Office has a reason to believe that there has occurred a violation of an Order, Permit, Notice of Intent, or regulation issued under the authority of the Act or these Rules, written Notice shall be given to the Operator of the possible violation at least thirty (30) days prior to the scheduled Board hearing date, unless such Notice is waived, in writing, by the Operator. Such Notice shall be served personally or by Certified Mail, Return Receipt Requested, upon the possible violator or the possible violator's agent, for service of process. The Notice shall state the provision alleged to be violated and the facts alleged to constitute the violation, and may include the nature of any corrective action proposed to be required. The Notice shall state the date, time and place of the Formal Hearing where the Board will consider the possible violation.

(2) Following a determination, by the Office, of reason to believe a violation exists, the Board shall hold a hearing on whether or not there is a violation.

(a) At the hearing, if the Board determines that a violation of the provisions of a Permit, a Notice of Intent, the Act, or these Rules has occurred, the Board may order the modification, suspension or revocation of the Permit. If the Board suspends or revokes the Permit of an Operator, the Operator may continue mining operations only for the purpose of bringing the mining operations into satisfactory compliance with the provisions of the Operator's Permit and all applicable safety regulations. Once such operations are complete to the satisfaction of the Board, the Board shall reinstate the Permit of the Operator.

(b) At the hearing, if the Board determines that a violation of the provisions of a permit, the Act, or these Rules has occurred, the Board shall assess a Civil Penalty of not less than one hundred dollars ($100.00) per day nor more than one thousand dollars ($1,000.00) per day for each day during which such violation occurs. Operators who affect substantial acreage beyond their approved permit boundary may be found to be operating without a permit and, in such case, the Civil Penalty shall be assessed according to the schedule in Rules 3.3.1(2) or (3).

(c) At the hearing, if the Board determines that a violation of the provisions of a permit, a Notice of Intent, the Act, or these Rules has occurred, the Board may issue a Cease and Desist Order. The order shall:

(i) specify the provisions(s) violated;

(ii) specify the facts which constitute the violation(s);

(iii) set forth the time by which the violations(s), act(s), or practices(s) must be terminated;

(iv) include, at the Board's discretion, any corrective action; and

(v) be served personally or by Certified Mail, return receipt requested, upon the Operator or their agent for service of process.

(3) After a finding by the Board of a failure to comply, pursuant to Rule 3.2, any expenses incurred by the Board or Office in carrying out corrective actions, including administrative costs, may be assessed against the violator.

3.3.3Injunctive Relief

(1) In the event any Operator fails to comply with a Cease and Desist Order, the Board may request the Attorney General to bring suit for a temporary restraining order, a preliminary injunction, or a permanent injunction to prevent any further or continued violation of such order.

(2) If the Board determines that the situation is an emergency, the emergency shall be given precedence over all other matters pending in such court.

3.3.4Violation of a Cease and Desist Order - Surety Forfeiture

The Board shall institute proceedings to have the surety of the Operator forfeited for violation by the Operator of a Cease and Desist Order entered pursuant to Rule 3.3. Such proceedings shall be conducted in accordance with Rule 4.20.

3.3.5Non-Payment of Annual Fees

Where an Operator is late in payment of the Annual Fee by longer than sixty (60) calendar days, the Office shall set the matter for a hearing before the Board for permit revocation and forfeiture of the financial warranty.

2 CCR 407-4-3

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