2011-03-11_GENERAL DOCUMENTS - C1992080

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?w The HRO letter explains Oakridge's belief that Section 3.02.3(2)(c) does not require commencement of actual construction on a site for demonstrating the approved industrial, commercial, and residential postmining land uses have substantially commenced. The Division considers actual on- site construction a necessary component of a 3.02.3(2)(c) demonstration at the Carbon Junction Mine because actual construction on the land indicates alteration of the land is in progress toward the new land use, rendering unnecessary further environmental protections provided by the coal rules. If the Carbon Junction site were to receive final bond release before on-site construction actually begins, and if there were then a long-term delay before construction substantially commences, there is potential for deterioration of the condition of the land by vegetation deterioration, weed growth, erosion, and slope instability. This potential exists because the land was revegetated to meet only a cover standard designed for providing erosion control until construction begins within two years after coal mine regrading is completed, as provided for industrial, commercial, residential, or residential postmining land uses in Section 4.15.10(2). Oakridge obtained a change in postmining land use from the premining uses of rangeland, wildlife habitat, and cropland, to industrial, commercial, residential, and recreation in 1996 in Technical Revision 5 (TR-5). This land-use change gave Oakridge an exemption from the full-scale revegetation standards (cover, production, species diversity, and woody plant density). The land-use change in TR-5 also exempted Oakridge from a 10-year bond liability period and freed them from transplanting live shrubs as they were removed during mining. The land-use change also eliminated the need for a premining vegetation reference area that previously existed. The HRO letter explains Oakridge's belief that the wording in Section 3.02.3(2)(c) "substantially commenced and be likely to be achieved" is more stringent than correlative federal law; therefore, the requirement is unenforceable. The HRO letter states that this opinion is based on Colorado Revised Statute 34-33-108 which prohibits the Division's Rules from being more stringent than is required to be as effective as federal counterparts, unless the Colorado Mined Land Reclamation Board makes a specific finding that either protection of the public safety or the environment requires a more stringent regulation. The Division researched the origin of the wording "substantially commenced and likely to be achieved" and found it was added to 3.02.3(2)(c) at the direction of the Office of Surface Mining who had concluded the language was necessary for ensuring the Division's Rules were no less effective than the federal regulation at 30 CFR 800.13(d)(2) and the 1983 preamble to that regulation (Federal Register, volume 59, page 62574, December 6, 1994). Based on this origin of the language, the Division believes the language is enforceable. Pages 3 and 4 of the HRO letter explain that Oakridge considers as arbitrary the Division's explanation in an email from Dan Hernandez to Mike Savage on September 30, 2010 that the threshold for demonstrating development of the approved postmining land use has substantially commenced would be obtaining building permits and pouring foundations on five of the nine parcels in the disturbed area. The Division has since clarified this threshold as being only an example of an adequate demonstration and any other actions that demonstrate development of the postmining land use has substantially commenced may also serve as an adequate demonstration (meeting on November 4, 2010, attended by David Berry, Dan Hernandez, and representatives of Oakridge). 14