Ohio Administrative Code
Title 1501:13 - Division of Mineral Resources Management - Coal
Chapter 1501:13-7 - Performance Security
Section 1501:13-7-05 - Procedures, criteria, and schedule for release of performance security for permits reliant on the reclamation forfeiture fund
Universal Citation: OH Admin Code 1501:13-7-05
Current through all regulations passed and filed through December 16, 2024
This rule applies to a permittee that provides performance security together with reliance on the reclamation forfeiture fund in accordance with paragraph (C)(2) of rule 1501:13-7-01 of the Administrative Code.
(A) Procedures for seeking release of performance security.
(1) Request for approval of reclamation.
After all reclamation, restoration, and abatement work in a reclamation phase,
as defined in paragraph (B)(1) of this rule, is completed on the entire permit
area or on an incremental area, the permittee, or any person authorized to act
on his or her behalf, shall file a request with the chief for approval of that
reclamation. A request for approval of a reclamation phase shall include a
request for release of performance security. A request for approval of
reclamation may be filed only at times or during seasons that allow the chief
to evaluate properly the reclamation reported to be completed.
(2) Contents of request for approval of
reclamation.
(a) Every request for approval of
reclamation for a particular reclamation phase shall include:
(i) The location and the number of acres of
land subject to the request;
(ii)
The permit number;
(iii) The amount
of performance security for the area subject to the request and the phase of
reclamation sought to be released; and
(iv) A notarized statement which certifies
that all applicable reclamation activities have been accomplished in accordance
with the requirements of Chapter 1513. of the Revised Code, the rules adopted
thereunder and the approved reclamation plan.
(b) The request for approval of reclamation
phase II or any attachments to the request shall also include:
(i) The results of tests on the soil of the
area requested for release for such vegetation-sustaining factors as potassium,
phosphorus, and lime, and a lime recommendation;
(ii) The planting report required under rule
1501:13-9-15 of the
Administrative Code;
(iii) The
number of acres of the area requested for release that are reclaimed as prime
farmland; and
(iv) Yield data for
those acres reclaimed as prime farmland, if appropriate.
(c) The request for approval of reclamation
phase III or any attachments to the request shall also state:
(i) The number of acres of the area requested
for release that are reclaimed as prime farmland;
(ii) Yield data for those acres reclaimed as
cropland, prime farmland, pasture or grazing land, if appropriate;
and
(iii) The number of acres of
the area requested for release that are reclaimed as lands eligible for
remining.
(d) With every
request for approval of reclamation for a particular reclamation phase, the
permittee shall submit copies of the letters the permittee has sent to
adjoining property owners, local government bodies, planning agencies, and
sewage and water treatment authorities or water companies in the locality in
which the coal mining and reclamation activities took place, notifying them of
the permittee's intention to seek release of performance security.
(3) At the time that a request for
release of performance security is filed with the chief, the permittee shall
publish an advertisement, described in division (F)(1) of section
1513.16 of the Revised Code, at
least once a week for four successive weeks in a newspaper of general
circulation in the locality of the coal mining operation. In addition to the
requirements specified in division (F)(1) of section
1513.16 of the Revised Code, the
advertisement shall contain the permittee's name and shall state that written
comments, objections, and requests for a performance security release
conference may be submitted to the chief pursuant to rule
1501:13-7-08
of the Administrative Code. The advertisement shall also provide the address to
which, and closing date by which, written comments, objections and requests for
performance security release conferences must be sent. Within thirty days after
filing a request for release with the chief, the permittee shall submit a copy
of this advertisement to the chief.
(4) After the publication required by
paragraph (A)(3) of this rule and prior to the release of performance security,
the permittee shall submit to the chief a notarized proof of publication from
the newspaper that published the advertisement.
(5) Inspection by the chief.
(a) Within thirty days after the permittee
has complied with the requirements of paragraphs (A)(1), (A)(2), and (A)(3) of
this rule, the chief shall conduct an inspection and evaluation of the
reclamation work involved. The surface owner, or agent or lessee of the surface
owner, shall be given notice of such inspection and may participate with the
chief or his or her authorized representative in making the performance
security release inspection.
(b)
The chief shall consider during inspection and evaluation of the reclamation:
(i) Whether the permittee has met the
requirements of Chapter 1513. of the Revised Code, these rules, any orders
issued during mining and reclamation, and the specifications of the approved
mining and reclamation plan;
(ii)
The degree of difficulty to complete any remaining reclamation;
(iii) Whether pollution of surface and
subsurface water is occurring;
(iv)
The probability the pollution will continue or occur again; and
(v) The estimated cost of abating the
pollution.
(6) Objections to release of performance
security and request for performance security release conference.
(a) Within thirty days after the last
newspaper publication of the filing of the request for release, written
objections to the proposed release of performance security may be filed with
the chief by the following persons:
(i) A
person with a valid legal interest that might be adversely affected by release
of the performance security;
(ii)
The responsible officer or head of any federal, state, or local government
agency that:
(a) Has jurisdiction by law or
special expertise with respect to any environmental, social, or economic impact
involved in the operation; or
(b)
Is authorized to develop and enforce environmental standards with respect to
the operation.
(b) Persons who may file objections under
paragraph (A)(6)(a) of this rule may also request a performance security
release conference on the proposed release of performance security pursuant to
rule
1501:13-7-08
of the Administrative Code.
(7) Decision of the chief; notice of review.
(a) The chief shall notify in writing the
permittee and any other interested parties of his or her decision to approve or
disapprove the request for release and his or her decision to release or not to
release all or part of the performance security:
(i) Within sixty days after the permittee has
filed a request for release and complied with the requirements of paragraphs
(A)(1), (A)(2), and (A)(3) of this rule, if no performance security release
conference is held pursuant to paragraph (A)(6)(b) of this rule; or
(ii) Within sixty days after the performance
security release conference, if a performance security release conference is
held pursuant to paragraph (A)(6)(b) of this rule.
(b) If the chief disapproves a request for
release, the chief shall notify the permittee in writing, stating the reasons
for disapproval, recommending corrective action necessary to secure release,
and informing the permittee of his or her right to appeal this decision to the
reclamation commission.
(c) Within
thirty days after notification of the final decision of the chief regarding the
performance security release, the permittee or any person with an interest that
is or may be adversely affected may file an appeal of that decision with the
reclamation commission.
(d) If the
chief intends to release the performance security, the chief shall notify the
municipal corporation in which the coal mining operation is located by
certified mail at least thirty days before release of all or part of the
performance security.
(e) The chief
shall not release performance security until proceedings in review of a
decision to release are terminated or, if rights to administrative and judicial
review have not been exercised, until periods allowed for filing applications
for review have expired.
(B) Criteria and schedule for release of performance security.
(1) Reclamation phases
defined.
(a) Reclamation phase I shall be
determined to be completed when, in accordance with the approved mining and
reclamation plan:
(i) Backfilling and
regrading have been completed; and
(ii) Drainage controls have been
established.
(b)
Reclamation phase II shall be determined to be completed when:
(i) Resoiling is completed and revegetation
meets the standards for success for a phase II performance security release in
accordance with rule
1501:13-9-15 of the
Administrative Code;
(ii) The lands
are not contributing suspended solids to stream flow or runoff outside the
permit area in excess of the requirements of division (A)(10) of section
1513.16 of the Revised Code,
these rules, permit conditions, or the mining and reclamation plan;
(iii) With respect to prime farmlands, soil
replacement has been carried out in accordance with the requirements of rule
1501:13-13-03
of the Administrative Code and division (A)(7) of section
1513.16 of the Revised Code, and
soil productivity has returned to the levels of yield required by rule
1501:13-4-12
of the Administrative Code;
(iv)
The provisions of a plan approved by the chief for the sound future management
of any permanent impoundment by the permittee or landowner are implemented to
the satisfaction of the chief; and
(v) Any permanent structures to be maintained
as part of the postmining land use are included in the approved reclamation
plan.
(c) Reclamation
phase III shall be determined to be completed when:
(i) The permittee has successfully completed
all coal mining and reclamation operations in accordance with the approved
reclamation plan and has met the phase III revegetation success standards in
accordance with rule
1501:13-9-15 of the
Administrative Code;
(ii) The
permittee has achieved compliance with the requirements of Chapter 1513. of the
Revised Code, these rules, and the permit; and
(iii) The applicable liability period under
rule
1501:13-7-02
of the Administrative Code has expired.
(2) Approval of reclamation phase.
(a) The chief may approve a request and
release liability under performance security according to the schedule set
forth in paragraph (B)(3) of this rule only upon the chief's determination that
reclamation in a particular phase is complete on an incremental area or the
entire permit area.
(b) The chief
may approve release of performance security for an incremental area when
reclamation in a particular phase is complete on that incremental area even
though such reclamation is not complete on other incremental areas within the
same permit, provided that no release of performance security for any acreage
within an incremental area may be approved until reclamation in the applicable
phase is complete for all acres within that incremental area.
(c) A portion of an incremental area
requiring extended liability because of augmentation or failure to achieve the
crop yields for prime farmland required for phase II performance security
release by rule
1501:13-9-15 of the
Administrative Code may, upon approval by the chief, be separated from the rest
of the incremental area and have performance security provided separately.
Before determining that extended liability should apply to only a portion of
the incremental area, the chief shall determine such portion:
(i) Is not significant in extent in relation
to the entire area under the performance security; and
(ii) Is limited to isolated, distinguishable,
and contiguous portions of the area for which performance security has been
provided and does not comprise scattered or intermittent occurrences throughout
the area for which performance security has been provided.
(d) If an area is separated under paragraph
(B)(2)(c) of this rule, that portion shall have performance security provided
separately and the applicable period of liability, in accordance with rule
1501:13-7-02
of the Administrative Code, shall commence anew. The period of liability for
the remaining area shall continue in effect without extension. The amount of
performance security on the original incremental area may be adjusted in
accordance with rule
1501:13-7-02
of the Administrative Code.
(e) The
chief may approve a request for release of performance security for reclamation
phase II on areas from which temporary sedimentation ponds have not yet been
removed, provided all requirements for a phase II performance security release
are met.
(f) A portion of an
incremental area requiring a reduced period of liability because of its
classification as a remining area shall be separated from the rest of the
incremental area and shall be eligible for phase III performance security
release pursuant to paragraph (O) of rule
1501:13-9-15 of the
Administrative Code.
(3)
Schedule for release.
(a) When reclamation
phase I is approved by the chief for an incremental area or the entire permit
area, the chief shall release performance security liability in the amount of
fifty per cent of the performance security for the incremental area or the
entire permit area on which the reclamation phase I is complete.
(b) When reclamation phase II is approved by
the chief for an incremental area or the entire permit area, the chief shall
release performance security liability in an amount not exceeding thirty-five
per cent of the original performance security for the incremental area or the
entire permit area on which the reclamation phase II is complete.
(c) When reclamation phase III is approved by
the chief for an incremental area or the entire permit area, the chief shall
release the remaining performance security liability for the incremental area
or entire permit area.
(4) Order of release. With the exception of
certificates of deposit, trust funds, and cash, which shall be released in any
manner and order as determined by the chief, other forms of performance
security shall be released under paragraph (B)(3) of this rule in the order in
which they were filed, and according to the following order by form of
performance security:
(a) The surety bond
filed earliest in the permit term, followed by surety bond filed later in the
permit term;
(b) The letter of credit filed earliest in the permit
term, followed by letters of credit filed later in the permit term;
and
(c) Any remaining collateral bond, in the order in
which it was filed.
Effective: 1/17/2016
Five Year
Review (FYR) Dates: 11/02/2015 and
01/16/2021
Promulgated
Under: 119.03
Statutory
Authority: 1513.02
Rule
Amplifies: 1513.08,
1513.16
Prior
Effective Dates: 8/16/82 (Emer.), 10/27/82, 10/1/88, 6/14/90, 10/22/90, 8/5/91,
11/27/93, 2/15/03, 4/30/09, 10/28/10
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