Current through Register Vol. 50, No. 9, September 20, 2024
A. The office may
accept a self-bond from an applicant for a permit if all of the following
conditions are met by the applicant or its parent corporation guarantor.
1. The applicant designates a suitable agent
to receive service of process in the state.
2. The applicant has been in continuous
operation as a business entity for a period of not less than five years.
Continuous operation shall mean that business was conducted over a period of
five years immediately preceding the time of application.
a. The office may allow a joint venture or
syndicate with less than five years of continuous operation to qualify under
this requirement, if each member of the joint venture or syndicate has been in
continuous operation for at least five years immediately preceding the time of
application.
b. When calculating
the period of continuous operation, the office may exclude past periods of
interruption to the operation of the business entity that were beyond the
applicant's control and that do not affect the applicant's likelihood of
remaining in business during the proposed surface coal mining and reclamation
operations.
3. The
applicant submits financial information in sufficient detail to show that the
applicant meets one of the following criteria:
a. the applicant has a current rating for its
most recent bond issuance of "A" or higher as issued by either Moody's Investor
Service or Standard and Poor's Corporation;
b. the applicant has a tangible net worth of
at least $10 million, a ratio of total liabilities to net worth of 2.5 times or
less, and a ratio of current assets to current liabilities of 1.2 times or
greater; or
c. the applicant's
fixed assets in the United States total at least $20 million, and the applicant
has a ratio of total liabilities to net worth of 2.5 times or less, and a ratio
of current assets to current liabilities of 1.2 times or greater.
4. The applicant submits:
a. financial statements for the most recently
completed fiscal year accompanied by a report prepared by an independent
certified public accountant in conformity with generally accepted accounting
principles and containing the accountant's audit opinion or review opinion of
the financial statements with no adverse opinion;
b. unaudited financial statements for
completed quarters in the current fiscal year; and
c. additional unaudited information as
requested by the office.
B.
1. The
office may accept a written guarantee for an applicant's self-bond from a
parent corporation guarantor, if the guarantor meets the conditions of
§4305. A 1-4 as if it
were the applicant. Such a written guarantee shall be referred to as a
"corporate guarantee." The terms of the corporate guarantee shall provide for
the following:
a. if the applicants fails to
complete the reclamation plan, the guarantor shall do so or the guarantor shall
be liable under the indemnity agreement to provide funds to the office
sufficient to complete the reclamation plan, but not to exceed the bond
amount;
b. the corporate guarantee
shall remain in force unless the guarantor sends notice of cancellation by
certified mail to the applicant and to the office at least 90 days in advance
of the cancellation date, and the office accepts the cancellation;
c. the cancellation may be accepted by the
office if the applicant obtains suitable replacement bond before the
cancellation date or if the lands for which the self-bond, or portion thereof,
was accepted have not been disturbed.
2. The office may accept a written guarantee
for an applicant's self-bond from any corporate guarantor, whenever the
applicant meets the conditions of
§4305. A 1-3, and the
guarantor meets the conditions of
§4305. A 1-4. Such a
written guarantee shall be referred to as a "nonparent corporate guarantee."
The terms of this guarantee shall provide for compliance with the conditions of
§4305. B.1 a-c. The
office may require the applicant to submit any information specified in
§4305. A.3 in order to
determine the financial capabilities of the applicant.
C. For the office to accept an applicant's
self-bond, the total amount of the outstanding and proposed self-bonds of the
applicant for surface coal mining and reclamation operations shall not exceed
25 percent of the applicant's tangible net worth in the United States. For the
office to accept a corporate guarantee, the total amount of the parent
corporation guarantor's present and proposed self-bonds and guaranteed
self-bonds for surface coal mining and reclamation operations shall not exceed
25 percent of the guarantor's tangible net worth in the United States. For the
office to accept a nonparent corporate guarantee, the total amount of the
nonparent corporate guarantor's present and proposed self-bonds and guaranteed
self-bonds shall not exceed 25 percent of the guarantor's tangible net worth in
the United States.
D. If the office
accepts an applicant's self-bond, an indemnity agreement shall be submitted
subject to the following requirements.
1. The
indemnity agreement shall be executed by all persons and parties who are to be
bound by it, including the parent corporation guarantor, and shall bind each
jointly and severally.
2.
Corporations applying for a self-bond, and parent and nonparent corporations
guaranteeing an applicant's self-bond, shall submit an indemnity agreement
signed by two corporate officers who are authorized to bind their corporations.
A copy of such authorization shall be provided to the office along with an
affidavit certifying that such an agreement is valid under all applicable
federal and state laws. In addition, the guarantor shall provide a copy of the
corporate authorization demonstrating that the corporation may guarantee the
self-bond and execute the indemnity agreement.
3. If the applicant is a partnership, joint
venture or syndicate, the agreement shall bind each partner or party who has a
beneficial interest, directly or indirectly, in the applicant.
4. Pursuant to Chapter 47, the applicant,
parent or nonparent corporate guarantor shall be required to complete the
approved reclamation plan for the lands in default or to pay to the office an
amount necessary to complete the approved reclamation plan, not to exceed the
bond amount. If permitted under state law, the indemnity agreement when under
forfeiture shall operate as a judgment against those parties liable under the
indemnity agreement.
E.
The office may require self-bonded applicants, parent and nonparent corporate
guarantors to submit an update of the information required under
§4305. A 3-4 within 90
days after the close of each fiscal year following the issuance of the
self-bond or corporate guarantee.
F. If at any time during the period when a
self-bond is posted, the financial conditions of the applicant, parent or
nonparent corporate guarantor change so that the criteria of
§4305. A.3 and C are not
satisfied, the permittee shall notify the office immediately and shall within
90 days post an alternate form of bond in the same amount as the self-bond.
Should the permittee fail to post an adequate substitute bond, the provisions
of §4303.
E.6 shall apply.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
30:901-932.
