Ohio Administrative Code
Title 1501:13 - Division of Mineral Resources Management - Coal
Chapter 1501:13-7 - Performance Security
Section 1501:13-7-05.1 - Procedures, criteria, and schedule for release of performance security for permits not reliant on the reclamation forfeiture fund
Universal Citation: OH Admin Code 1501:13-7-05.1
Current through all regulations passed and filed through December 16, 2024
This rule applies to a permittee that provides performance security without reliance on the reclamation forfeiture fund in accordance with paragraph (C)(1) of rule 1501:13-7-01 of the Administrative Code.
(A) Procedures for seeking approval of a reclamation phase and release of performance security.
(1) Request for
approval of reclamation.
(a) 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 entire incremental mining unit, 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 for the entire
permit area or for an entire incremental mining unit shall include a request
for release of performance security.
(b) After all reclamation, restoration, and
abatement work in reclamation phase I or reclamation phase II, as defined by
paragraph (B)(1) of this rule, is completed on a designated area within a
permit area or incremental mining unit, the permittee may file a request for
approval of reclamation phase I or reclamation phase II for that designated
area. A request for approval under this paragraph shall not include a request
for release of performance security.
(c) 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) 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; and
(iv) If the request for
approval of reclamation includes a request for release of performance security,
the amount of performance security for the area subject to the request and the
phase of reclamation sought to be released.
(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 approval 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 approval 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 approval and 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 request for reclamation phase approval and, when included, the
permittee's request for release of performance security.
(3) At the time that a request for approval
of a reclamation phase or 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 reclamation phase approval conference
or 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
a reclamation phase approval conference or a performance security release
conference must be sent. Within thirty days after filing a request for approval
of a reclamation phase or a request for approval of a 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 approval of the reclamation
phase or 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
reclamation phase approval 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 approval of reclamation
phase or to release of performance security and request for reclamation phase
approval conference or performance security release conference.
(a) Within thirty days after the last
newspaper publication of the filing of the request for approval of a
reclamation phase or the request for release of performance security, written
objections to the proposed reclamation phase approval or proposed performance
security release may be filed with the chief by the following persons:
(i) A person with a valid legal interest that
might be adversely affected by approval of the reclamation phase or 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 reclamation phase approval
conference on the proposed approval or 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 a reclamation phase or a 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 approval of a reclamation phase or for release of
performance security and complied with the requirements of paragraphs (A)(1),
(A)(2), and (A)(3) of this rule, if no reclamation phase approval conference or
performance security release conference is held pursuant to paragraph (A)(6)(b)
of this rule; or
(ii) Within sixty
days after the reclamation phase approval conference or performance security
release conference, if a reclamation phase approval conference or performance
security release conference is held pursuant to paragraph (A)(6)(b) of this
rule.
(b) If the chief
disapproves a reclamation phase or a request for release, the chief shall
notify the permittee in writing, stating the reasons for disapproval,
recommending corrective action necessary to secure approval or 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
reclamation phase or 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 request for release of
performance security.
(a) The chief may
approve a request for release of performance security and may 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 mining unit or the entire permit
area.
(b) The chief may approve
release of performance security for an incremental mining unit when reclamation
in a particular phase is complete on that incremental mining unit even though
such reclamation is not complete on other incremental mining units within the
same permit, provided that no release of performance security for any acreage
within an incremental mining unit may be approved until reclamation in the
applicable phase is complete for all acres within that incremental mining
unit.
(c) A portion of an
incremental mining unit 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 mining unit and have performance security provided
separately. Before determining that extended liability should apply to only a
portion of the incremental mining unit, 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 mining unit 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 mining unit requiring a reduced period of liability because of its
classification as a remining area shall be separated from the rest of the
incremental mining unit 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 mining unit or the entire
permit area, the chief shall release performance security liability in an
amount of up to fifty per cent of the performance security for the incremental
mining unit 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 mining unit or the entire
permit area, the chief shall release performance security liability in an
amount of up to thirty-five per cent of the original performance security for
the incremental mining unit 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 mining unit
or the entire permit area, the chief shall release the remaining performance
security liability for the incremental mining unit 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: 4/30/09, 10/28/10
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