Current through Register Vol. 41, No. 3, September 23, 2024
(a) Bond release application.
(1) The permittee may file an application
with the division for the release of all or part of a performance bond.
Applications may be filed only at times or during seasons authorized by the
division in order to properly evaluate the completed reclamation operations.
The times or seasons appropriate for the evaluation of certain types of
reclamation shall be identified in the mining and reclamation plan required in
Subchapter VG.
(2) Within 30 days
after an application for bond release has been filed with the division, the
permittee shall submit proof of publication of the advertisement placed at
least once a week for four successive weeks in a newspaper of general
circulation in the locality of the surface coal mining operation. The
advertisement shall be considered part of any bond release application and
shall contain the applicant's name, the permit number, notification of the
precise location of the land affected, the number of acres, the type and amount
of the bond filed and the portion sought to be released, the type and
appropriate dates of reclamation work performed, a description of the results
achieved as they relate to the permittee's approved reclamation plan, and the
name and address of the division to which written comments, objections, or
requests for public hearings and informal conferences on the specific bond
release may be submitted pursuant to 4VAC25-130-800.40(f) and (h). In addition,
as part of any bond release application, the permittee shall submit copies of
letters which he has 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.
(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 regulatory program, and the
approved reclamation plan. Such certification shall be submitted for each
application or phase of bond release.
(b) Inspection by the division.
(1) Upon receipt of the bond release
application, the division shall, within 30 days, or as soon thereafter as
weather conditions permit, conduct an inspection and evaluation of the
reclamation work involved. The evaluation shall consider, among other factors,
the degree of difficulty to complete any remaining reclamation, whether
pollution of surface and subsurface water is occurring, the probability of
future occurrence of such pollution, and the estimated cost of abating such
pollution. The surface owner, agent, or lessee shall be given notice of such
inspection and may participate with the division in making the bond release
inspection. The division may arrange with the permittee to allow access to the
permit area, upon request by any person with an interest in the bond release,
for the purpose of gathering information relevant to the proceeding.
(2) Within 60 days from the filing of the
bond release application, if no public hearing is held pursuant to paragraph
(f) of this section, or, within 30 days after a public hearing has been held
pursuant to paragraph (f) of this section, the division shall notify in writing
the permittee, the surety or other persons with an interest in the bond
collateral who have requested notification under 4VAC25-130-800.21(c), and the
persons who either filed objections in writing or objectors who were a party to
the hearing proceedings, if any, of its decision to release or not to release
all or part of the performance bond.
(c) The division may release all or part of
the bond for the entire permit area or a portion of the permit area if the
division is satisfied that all 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:
(1) At the completion of Phase I, after the
permittee 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, 60% of the bond or collateral for the
applicable area.
(2) At the
completion of Phase II, after revegetation has been established on the regraded
mined lands in accordance with the approved reclamation plan, an additional
amount of bond. When determining the amount of bond to be released after
successful revegetation has been established, the division shall retain that
amount of bond for the revegetated area which would be sufficient to cover the
cost of reestablishing revegetation if completed by a third party and for the
period specified for permittee responsibility in § 45.2-1016 of the Act
for reestablishing revegetation. No part of the bond or deposit shall be
released under this paragraph so long as the lands to which the release would
be applicable are contributing suspended solids to streamflow or runoff outside
the permit area in excess of the requirements set by § 45.2-1017 of the
Act and by Subchapter VK or until soil productivity for prime farmlands has
returned to the equivalent levels of yield as nonmined land of the same soil
type in the surrounding area under equivalent management practices as
determined from the soil survey performed pursuant to § 45.2-1013 of the
Act and Part 823. Where a silt dam is to be retained as a permanent impoundment
pursuant to Subchapter VK, the Phase II portion of the bond may be released
under this paragraph so long as provisions for sound future maintenance by the
permittee or the landowner have been made with the division.
(3) At the completion of Phase III, after the
permittee has successfully completed all surface coal mining and reclamation
activities, the release of the remaining portion of the bond, but not before
the expiration of the period specified for permittee responsibility in
4VAC25-130-816.116 or 4VAC25-130-817.116. However, no bond shall be fully
released under provisions of this section until reclamation requirements of the
Act and the permit are fully met.
(d) If the division disapproves the
application for release of the bond or portion thereof, the division shall
notify the permittee, the surety, and any person with an interest in collateral
as provided for in 4VAC25-130-800.21(c), in writing, stating the reasons for
disapproval and recommending corrective actions necessary to secure the release
and allowing an opportunity for a public hearing.
(e) When any application for total or partial
bond release is filed with the division, the division shall notify the town,
city or other municipality nearest the operation and the county 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.
(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 from
bond with the division within 30 days after the last publication of the notice
required by 4VAC25-130-800.40(a)(2). If written objections are filed and a
hearing is requested, the division shall inform all the interested parties of
the time and place of the hearing, and shall hold a public hearing within 30
days after receipt of the request for the hearing. The date, time and location
of the public hearing shall be advertised by the division in a newspaper of
general circulation in the locality for two consecutive weeks. The public
hearing shall be held in the locality of the surface coal mining operation from
which bond release is sought, at the location of the division office, or at the
State Capital, at the option of the objector. The decision of the Hearing
Officer shall be made within 30 days from the close of the hearing.
(g) For the purpose of the hearing under
paragraph (f) of this section, the division 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 division.
(h) Without prejudice
to the right of an objector or the applicant, the division may hold an informal
conference as provided in § 45.2-1014 of the Act to resolve such written
objections. The division shall make a record of the informal conference unless
waived by all parties, which shall be accessible to all parties. The division
shall also furnish all parties of the informal conference with a written
finding of the division based on the informal conference, and the reasons for
said finding.
Statutory Authority: § 45.2-103 of the Code of
Virginia.
