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RULE §12.313Criteria and Schedule for Release of Performance Bond

(a) The Commission may release all or part of the bond for the entire permit area or incremental area if the Commission is satisfied that the reclamation or a phase of the reclamation covered by the bond or deposit 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 operator 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 Commission 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 operator responsibility in §§134.091-134.109 of the Act for reestablishing revegetation. No part of the bond or deposit shall be released under this Subsection 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 §134.092(a)(10) of the Act and Subchapter K of this chapter (relating to Permanent Program Performance Standards), 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 §134.052(a)(16) of the Act and §§12.620-12.625 of this title (relating to Special Permanent Program Performance Standards--Operations on Prime Farmland). Where a silt dam is to be retained as a permanent impoundment pursuant to Subchapter K of this Chapter, the Phase II portion of the bond may be released under this paragraph so long as provisions for sound further maintenance by the operator or the landowner have been made with the Commission; and

  (3) at the completion of Phase III, after the operator has completed successfully 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 operator responsibility in §12.395 of this title (relating to Revegetation: Standards for Success) or §12.560 of the title (relating to Revegetation: Standards for Success). However, no bond shall be fully released until all reclamation requirements of the Act and the permit are fully met.

(b) If the Commission disapproves the application for release of the bond or portion thereof, the Commission shall notify the permittee, the surety, and any person with an interest in collateral as provided for in §12.309(l) of this title (relating to Terms and Conditions of the Bond), in writing, stating the reasons for disapproval and recommending corrective action necessary to secure said release and allowing opportunity for a public hearing.

(c) When any application for total or partial bond release is filed with the Commission, the Commission shall notify the municipality in which a 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.

(d) 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 government agency which has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to such operations, shall have the right to file written objection to the proposed release from bond to the Commission within thirty days after the last publication of the above notice. If written objections are filed, and a hearing requested, the Commission shall inform all interested parties of the time and place of the hearing, and hold a public hearing in the locality of the surface coal mining operation proposed for bond release, or at the State capital, at the option of the objector, within 30 days of the request for such hearing. The date, time, and location of such public hearing shall be advertised by the Commission in a newspaper of general circulation in the locality for two consecutive weeks.

(e) Without prejudice to the rights of the objectors, the applicant, or the responsibilities of the Commission pursuant to this section, the Commission may establish an informal conference to resolve such written objections.

(f) For the purpose of such hearings under subsection (d) of this section, the Commission shall have the authority to administer oaths, subpoena witnesses or written or printed materials, compel the attendance of witnesses or production of materials, and take evidence including, but not limited to, inspections 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 made available on the motion of any party or by order of the Commission.

Source Note: The provisions of this §12.313 adopted to be effective April 7, 1997, 22 TexReg 3093; amended to be effective December 29, 1998, 23 TexReg 13041.

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