Current through Register Vol. XLI, No. 19, May 10, 2024
Section 38-2-12 - Replacement, Release, and Forfeiture of Bonds12.1. Replacement of Bonds. 12.1.a. The Secretary may approve the replacement of existing bonds with other equivalent bonds.12.1.b. Existing bonds shall not be released until the permittee has submitted, and the Secretary has approved, acceptable replacement bonds. Replacement of a bond pursuant to this section shall not constitute a release of bond.12.2. Requirement to Release Bonds. 12.2.a. In addition to the requirements of section 23 of the Act, the following bond release procedures shall be observed: 12.2.a.1. The permittee may file an application with the Secretary for the release of all or part of a bond. Applications may be filed only at times or during seasons established by the Secretary which allow proper evaluation of the completed reclamation operations.12.2.a.2. A certification of publication of the advertisement shall be made a part of any bond release application file. In addition to the requirement of section 23 of the Act, the advertisement shall indicate the name of the permittee, the type of bond filed, the address of the nearest regional office of the Department of Environmental Protection to which written comments or requests for public hearings and informal conferences on the specific bond release may be submitted, and the closing date for receipt of comments or requests. In addition, as part of any bond release application, the applicant shall submit copies of letters which have been sent to adjoining property owners, local governmental bodies, planning agencies, sewage and water treatment authorities, and water companies in the locality in which the surface coal mining and reclamation operation took place, notifying them of the intention to seek release from the bond.12.2.a.3. The permittee shall include in the application for bond release a notarized statement which certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of the Act, the rules promulgated thereof, and the approved reclamation plan. Such certification shall be submitted for each application or phase of bond release.12.2.a.4. Notwithstanding any other provisions of this rule to the contrary, the Secretary will not release or reduce the bond if, at the time, water discharged from or affected by the operation requires chemical or passive treatment in order to comply with applicable effluent limitations standards. Permit-approved measures taken during operations to prevent the formation of acid drainage shall not be considered passive treatment: Provided, That the Secretary may approve a request for release if the applicant demonstrates to the satisfaction of the Secretary that either:12.2.a.4.A. The remaining bond is adequate to assure long term treatment of the drainage; or12.2.a.4.B. The operator has provided irrevocable financial assurances in a form satisfactory to the Secretary through a contract or other mechanism enforceable under provisions of law, such as delineated in subsection 11.3 of this rule, adequate to provide for long term treatment of the drainage as required by the federal Clean Water Act at 33 U.S.C 1251et seq., the West Virginia Water Pollution Control Act at § 22-11-1et seq. of this code and the operator's National Pollutant Discharge Elimination System permit issued under 47 CSR 30. Default on a treatment obligation under this paragraph will subject the operator to penalties and sanctions, including permit blocking. In order to make this demonstration, the applicant shall address, at a minimum, the current and projected quantity and quality of drainage to be treated, the anticipated duration of treatment, the estimated capital and operating cost of the treatment facility, and the calculations that demonstrate the adequacy of the remaining bond or other financial assurance.
12.2.b. Inspection by the Secretary. 12.2.b.1. Upon receipt of the bond release application, the Secretary shall, within thirty (30) days, or as soon thereafter as weather conditions permit, conduct an inspection and evaluation of the reclamation work involved. The surface owner, agent, or lessee shall be given notice of such inspection and may participate in making the bond release inspection.12.2.b.2. Within sixty (60) days from the filing of the bond release application, if no public hearing is held, or within thirty (30) days after a public hearing or informal conference has been held, the Secretary shall notify in writing the permittee, the surety or other persons with an interest in bond collateral who have requested notification, and the persons who either filed objections in writing or objectors who were a party to the hearing proceedings, if any, of his decision to release or not to release all or part of the bond.12.2.c. The Secretary may release all or part of the bond for the entire permit or incremental area, if the Secretary is satisfied that all of the reclamation or a phase of the reclamation covered by the bond or portion thereof has been accomplished in accordance with the following schedules for reclamation of Phases I, II, and III:12.2.c.1. At the completion of Phase I, after the operator completes the backfilling, regrading (which may include the replacement of topsoil) and drainage control of a bonded area in accordance with the approved reclamation plan, sixty (60) percent of the bond or collateral for the applicable area.12.2.c.2. After revegetation has been established on the regraded mined lands in accordance with the approved reclamation plan. Phase II reclamation shall be considered complete and an additional amount may be released, provided that: 12.2.c.2.A. The lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of the Act, this rule, and the terms and conditions of the NPDES permit.12.2.c.2.B. With respect to prime farmland, soil productivity has been returned to the level of yield as required by the Act, this rule, and the terms and conditions of the permit.12.2.c.2.C. The provisions of a plan approved by the Secretary for the sound future management of any permanent impoundment by the permittee or landowner have been implemented.12.2.c.2.D. The amount of the remaining bond shall be sufficient for a third party to cover the estimated cost of reestablishing vegetation and maintaining permanent drainage control structures.12.2.c.3. At the completion of Phase III, after the operator has completed successful reclamation activities, the release of the remaining portion of the bond, but not before the expiration of the period specified in Section 9 of this rule. However no bond shall be fully released under provisions of this section until reclamation requirements of the Act and the permit are fully met.12.2.d. If the Secretary disapproves the application for release of the bond or portion thereof, he shall notify the permittee, the surety, and any person with an interest in collateral, in writing, stating the reasons for disapproval and recommending corrective actions necessary to secure the release and allowing an opportunity for a public hearing.12.2.e. When any application for total or partial bond release is filed with the Secretary, the Secretary shall notify the municipality in which the surface coal mining operation is located by certified mail at least 30 days prior to the release of all or a portion of the bond.12.2.f. Any person with a valid legal interest which might be adversely affected by release of the bond, or the responsible officer or head of any Federal, State, or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation or which is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objections to the proposed release of bond with the Secretary within thirty (30) days after the last publication of the notice required by 12.2.a.2, of this rule. If written objections are filed and a hearing is requested, the Secretary shall inform all the interested parties of the time and place of the hearing, and shall hold a public hearing, or informal conference, within thirty (30) days after receipt of the request for the hearing. The date, time, and location of the public hearing, or informal conference, shall be advertised by the Secretary in a newspaper of general circulation in the locality for two (2) consecutive weeks. The public hearing, or informal conference, shall be held in the locality of the surface coal mining operation from which bond release is sought.12.2.g. For the purpose of the hearing under paragraph 12.2.f of this rule, the Secretary shall have the authority to administer oaths, subpoena witnesses or written or printed material, compel the attendance of witnesses or the production of materials, and take evidence including, but not limited to, inspection of the land affected and other surface coal mining operations carried on by the applicant in the general vicinity. A verbatim record of each public hearing shall be made, and a transcript shall be made available on the motion of any party or by order of the Secretary.12.2.h. Without prejudice to the right of an objector or the applicant, and when all parties agree, the Secretary may hold an informal conference in lieu of a public hearing to resolve such written objections. Unless waived by all parties, the Secretary shall make a record of the informal conference which shall be accessible to all parties. The Secretary shall also furnish all parties of the informal conference with written findings based on the informal conference, and the reasons for said findings.12.2.i. Without prejudice to the right of an objector or the applicant, and when all parties agree, the Secretary may hold an informal conference in lieu of a public hearing to resolve such written objections. Unless waived by all parties, the Secretary shall make a record of the informal conference which shall be accessible to all parties. The Secretary shall also furnish all parties of the informal conference with written findings based on the informal conference, and the reasons for said findings.12.3. Bond Adjustments. 12.3.a. Where the permittee demonstrates, on the basis of a sworn statement and a progress map, that a portion of the permit area will remain undisturbed or has been overbonded in accordance with subdivision 3.29.a of this rule, the Secretary may adjust the amount of the bond corresponding to the number of undisturbed or overbonded acres, provided that a minimum of $10,000.00 bond remains for the disturbed portion of the permit. Prior to a decision on the request for bond adjustment, the Secretary shall notify the surety, and any person with a property interest in collateral who has requested notification, of receipt of the request for adjustment to the bond amount. Within thirty (30) days, the Secretary shall make a decision on the request. If the request is denied, the Secretary shall provide the permittee with an opportunity for an informal conference on the decision.12.3.b. Upon receipt of a permit revision, the Secretary may review the bond adequacy and if necessary may require an increase in the amount of the bond.12.3.c. The provisions of this subsection are not subject to the provisions of subsection 12.2.12.4. Forfeiture of Bonds. 12.4.a. If an operator refuses or is unable to conduct reclamation of an unabated violation, if the terms of the permit are not met, or if the operator defaults on the conditions under which the bond was accepted, the Secretary shall take the following action to forfeit all of the bond:12.4.a.1. Send written notification by certified mail, return receipt requested, to the permittee and the surety on the bond, if any, informing them of the decision to forfeit the bond, including the reasons for the forfeiture and the amount to be forfeited. Bond liability shall extend to the entire permit area.12.4.a.2. Advise the permittee and surety, if applicable, of the conditions under which forfeiture may be avoided. Such conditions may include, but are not limited to: 12.4.a.2.A. Agreement by the permittee or another party to perform reclamation operations in accordance with a compliance schedule which meets the conditions of the permit, the reclamation plan, and the regulatory program and a demonstration that such party has the ability to satisfy the conditions; or12.4.a.2.B. The Secretary may allow a surety to complete the reclamation plan, or the portion of the reclamation plan applicable to the bonded phase or increment, if the surety demonstrates the ability to complete the reclamation in accordance with the approved reclamation plan. Except where the Secretary may approve partial release authorized under 12.2 of this rule, no surety liability shall be released until successful completion of all reclamation under the terms of the permit and in accordance with the Act and this rule to include the revegetation liability period.12.4.b. In the event forfeiture of the bond is required by this section, the Secretary shall: 12.4.b.1 Proceed to collect the forfeiture amount as provided for by applicable laws for the collection of defaulted bonds or other debts if actions to avoid forfeiture have not been taken, or if rights of appeal, if any, have not been exercised within a time established by the regulatory authority, or if such appeal, if taken, is unsuccessful.12.4.b.2. Use funds collected from bond forfeiture to complete the reclamation plan, or portion thereof, on the permit area or increment, to which bond coverage applies.12.4.c. Upon default, the Secretary shall cause the forfeiture of any and all bonds deposited to complete reclamation for which the bonds were posted. Unless specifically limited, as provided in 11.4 of this rule, bond liability shall extend to the entire permit area under conditions of forfeiture.12.4.d. In the event the estimated amount forfeited is insufficient to pay for the full cost of reclamation, the Secretary shall make expenditures out of the Special Reclamation Fund to complete the reclamation on the bonded area. The Secretary may recover from the operator or permittee all costs of reclamation in excess of the amount forfeited.12.4.e. The operator or permittee shall be liable for all costs in excess of the amount forfeited. The Secretary may commence civil, criminal or other appropriate action to collect such costs.