Ohio Administrative Code
Title 1501:13 - Division of Mineral Resources Management - Coal
Chapter 1501:13-7 - Performance Security
Section 1501:13-7-06 - Performance security forfeiture criteria and procedures
Universal Citation: OH Admin Code 1501:13-7-06
Current through all regulations passed and filed through December 16, 2024
(A) Performance security forfeiture criteria. The chief shall forfeit performance security under the procedures contained in paragraph (C) of this rule whenever any of the following criteria applies:
(1) The
permittee failed to comply with a notice of violation issued for failure to
complete any phase of reclamation within the time required by the mining and
reclamation plan and any time extensions given for good cause; or
(2) The coal mining and reclamation
operations on the area under performance security are abandoned; or
(3) The permittee lacks the ability to
continue to operate in compliance with the requirements of Chapter 1513. of the
Revised Code, these rules, or the permit; or
(4) The permittee defaults on the conditions
under which the performance security was accepted.
(B) Opportunity to show cause why performance security should not be forfeited.
(1) Before
performance security is forfeited under the criteria of paragraph (A)(2) or
(A)(3) of this rule, because of abandonment of the coal mining and reclamation
operation or inability of the permittee to comply, the chief shall order the
permittee to show cause why the operation should not be deemed abandoned or why
the permittee has the ability to comply with the requirements of Chapter 1513.
of the Revised Code.
(2) The show
cause order shall:
(a) Identify the coal
mining and reclamation operations covered by the performance security to be
forfeited;
(b) Give notice of the
time, date, place, and purpose of the show cause hearing at which the permittee
may show cause why the operation should not be deemed abandoned or why the
permittee has the ability to comply with the requirements of Chapter 1513. of
the Revised Code; and
(c) Be issued
at least twenty-one days before the show cause hearing is held.
(3) If the chief determines that
the show cause order sent by certified mail or other
method able to track receipt of delivery is not received by the permittee
within seven days after the order is mailed, the chief shall, as soon as
possible, publish notice of the date, time, place, and purpose of the show
cause hearing in a newspaper of general circulation in the locality of the
operation.
(C) Forfeiture procedures. When performance security is to be forfeited, the chief shall issue a performance security forfeiture order to the permittee.
(1) The chief shall identify in the
performance security forfeiture order the entire permit area or, when
applicable, the incremental area or the incremental mining unit, for which
performance security is to be forfeited. The order shall forfeit all remaining
performance security on deposit for the permit.
(2) The performance security forfeiture order
may include the terms of a reclamation agreement with the chief which, if
complied with, shall result in avoidance of the forfeiture. The terms of the
agreement shall include performance of reclamation operations and abatement of
all unabated violations in accordance with a compliance schedule which meets
the conditions of the permit, the reclamation plan, Chapter 1513. of the
Revised Code and these rules, and a timetable specified by the chief.
(a) If the permittee fails to enter into a
reclamation agreement within twenty days of the issuance of a performance
security forfeiture order containing such agreement, the chief shall
immediately forfeit the performance security and notify the permittee's surety,
if applicable, of the permittee's failure to comply.
(b) If the permittee demonstrates to the
chief's satisfaction within twenty days of the issuance of a performance
security forfeiture order that the permittee has the ability to meet the terms
and conditions of the reclamation agreement contained in the performance
security forfeiture order, the chief shall monitor compliance with the terms
and conditions of the reclamation agreement.
(i) Upon the permittee's satisfactory
performance under the terms and conditions of the reclamation agreement, the
chief shall rescind the performance security forfeiture order.
(ii) Upon the permittee's failure to comply
with any of the terms or conditions of the reclamation agreement, the chief
shall immediately forfeit the performance security and notify the permittee's
surety, if applicable, of the permittee's failure to comply.
(c) The surety's time to elect to
reclaim under paragraph (E) of this rule shall not begin to run until the
permittee has failed to enter into an agreement under paragraph (C)(2) of this
rule or has failed to comply with the terms of such agreement, and the surety
has been notified of such failure.
(3) The performance security forfeiture order
shall be sent by certified mail, return receipt requested,
or other method able to track receipt of delivery
and shall inform the permittee and surety of the reasons for the
forfeiture.
(4) In the event that
the permittee does not enter into a reclamation agreement or fails to comply
with the terms of a reclamation agreement under paragraph (C)(2) of this rule,
when the performance security filed with the division of mineral resources
management is supported by or in the form of:
(a) Cash, certificates of deposit or
negotiable government bonds, then the order shall declare the cash,
certificates of deposit, or negotiable government bonds property of the
state;
(b) A letter of credit, then
the order shall inform the permittee that the state will immediately draw on
the letter of credit; or
(c) A
trust fund, then the order shall inform the permittee that the state will
proceed as set forth in the terms of the trust agreement.
(5) If the performance security filed with
the division of mineral resources management is in the form of a surety bond,
the chief shall also issue a performance security forfeiture order to all
sureties involved, and, in addition to the requirements of paragraphs (C)(1)
and (C)(3) of this rule, the order shall inform each surety of its rights and
the extent of its obligations and liabilities for the entire permit area or,
when applicable, for the incremental area or the incremental mining
unit.
(D) Issuance of a performance security forfeiture order does not relieve a permittee from the responsibility for complying, and does not prevent the permittee from being subject to civil penalties for not complying with any order or notice of violation issued for conditions existing on the entire permit area or, when applicable, on the incremental area or the incremental mining unit.
(E) Reclamation by the surety.
(1) Within sixty days after it receives a
performance security forfeiture order, or within sixty days of notification of
the permittee's failure to elect to enter into a reclamation agreement under
paragraph (C)(2) of this rule or the permittee's failure to comply with the
terms of a reclamation agreement under paragraph (C)(2) of this rule, each
surety:
(a) Shall notify the chief that it
will not complete reclamation and shall make payment under the surety bond for
the full amount of its liability under the surety bond; or
(b) Shall notify the chief that it will
complete reclamation and shall submit to the chief a plan, including a
timetable for performing reclamation in accordance with the reclamation plan
and the requirements of Chapter 1513. of the Revised Code and these
rules.
(2) The chief may
allow the surety to complete reclamation if the surety can demonstrate an
ability to complete reclamation in accordance with Chapter 1513. of the Revised
Code, these rules and the reclamation plan.
(3) A surety completing a reclamation phase
on the entire permit area or, when applicable, on the incremental area or
incremental mining unit, may obtain a release of its performance security
obligation in the same manner as a permittee or operator pursuant to division
(F) of section
1513.16 of
the Revised Code.
(4) The rights of
a surety to perform reclamation shall be terminated if the surety fails to:
(a) Notify the chief within sixty days after
receipt of the performance security forfeiture order, or within sixty days of
notification of the permittee's failure to elect to enter into a reclamation
agreement under paragraph (C) (2) of this rule or the permittee's failure to
comply with the terms of a reclamation agreement under paragraph (C)(2) of this
rule, that it will or will not perform reclamation.
(b) Submit a reclamation timetable at the
same time it notifies the chief that it will perform reclamation; or
(c) Commence, continue, or complete
reclamation in accordance with the reclamation timetable.
(5) When the chief determines that the rights
of a surety shall be terminated, the chief shall issue an order terminating the
rights of the surety and demanding payment from the surety for the entire
amount of performance security filed with the chief by the surety for the
entire permit area or, when applicable, for the incremental area or incremental
mining unit.
(F) Reclamation by the chief.
(1) After receiving
the moneys collected under paragraph (C) or (E) of this rule, the chief shall
proceed to reclaim the entire permit area or, when applicable, the incremental
area or the incremental mining unit, in accordance with:
(a) The requirements of section
1513.18
of the Revised Code if the permit that was forfeited was not a permanent
program permit; or
(b) In
accordance with Chapter 1513. of the Revised Code, these rules and the approved
reclamation plan if the permit that was forfeited was a permanent program
permit.
(2) Any
revisions that the chief wishes to make to the approved reclamation plan of a
permanent program permit on which the performance security has been forfeited
shall be made in accordance with paragraph (E) of rule
1501:13-4-06
of the Administrative Code. As used in paragraph (F) of this rule, "permanent
program permit" means any permit issued after August 16, 1982, and any permit
issued between September 1, 1981 and August 16, 1982 that was subsequently
revised to meet the criteria of the approved program.
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