§ 800.42 - What are the criteria for bond release?

§ 800.42 What are the criteria for bond release?

(a) General requirements.

(1) Except as provided in paragraphs (a)(2) through (5) of this section, the regulatory authority may release all or part of the performance bond for the permit area or an increment thereof if the regulatory authority is satisfied that you have accomplished the required reclamation for the permit area or increment in accordance with paragraphs (b) through (d) of this section.

(2)

(i) The regulatory authority must conduct a scientifically defensible trend analysis of the monitoring data submitted under §§ 816.35 through 816.37 or §§ 817.35 through 817.37 of this chapter before releasing any bond amount.

(ii) The regulatory authority may not approve a bond release application if the analysis conducted under paragraph (a)(2)(i) of this section and other relevant information indicate that the operation is causing material damage to the hydrologic balance outside the permit area or is likely to do so in the future.

(3) If you are responsible for a discharge requiring long-term treatment, regardless of whether the discharge emerges either on the permit area or at a point that is hydrologically connected to the permit area, you must post a separate financial assurance, collateral bond, or surety bond under § 800.18 of this part to guarantee treatment of the discharge before any portion of the existing performance bond for the permit area may be released, unless the type and amount of bond remaining after the release would be adequate to meet the requirements of § 800.18 of this part as well as any remaining land reclamation obligations.

(4) If the permit area or increment includes mountaintop removal mining operations under § 785.14 of this chapter or a variance from restoration of the approximate original contour under § 785.16 of this chapter, the amount of bond that may be released is subject to the limitation specified in § 785.14(c)(2) of this chapter for mountaintop removal mining operations or the limitation specified in § 785.16(b)(2) of this chapter for a variance from restoration of the approximate original contour.

(5) The bond amount described in § 780.24(d)(2) or § 784.24(d)(2) of this chapter may not be released either until the structure is in use as part of the postmining land use or until the structure is removed and the site upon which it was located is reclaimed in accordance with part 816 or part 817 of this chapter.

(6) The regulatory authority must consider the results of the evaluation conducted under § 800.41(a)(2) of this part when determining the amount of performance bond to release.

(b) Phase I reclamation.

(1) The regulatory authority may release a maximum of 60 percent of the performance bond for a bonded area after you complete Phase I reclamation for that area in accordance with the approved reclamation plan. Phase I reclamation consists of backfilling, grading, and establishment of drainage control. It includes construction of the postmining drainage pattern and stream-channel configuration required by §§ 816.56(b), 816.57(c)(1), 817.56(b), and 817.57(c)(1) of this chapter and restoration of the form of perennial and intermittent streams under §§ 816.57(e) and 817.57(e) of this chapter. Soil replacement is optional for this phase.

(2) The amount of performance bond that the regulatory authority retains after Phase I release must be adequate to ensure that the regulatory authority will have sufficient funds for a third party to complete the remaining portion of the reclamation plan, including restoration of the hydrologic function and ecological function of perennial and intermittent streams under § 816.57(f) and (g) or § 817.57(f) and (g) of this chapter and completion of any fish and wildlife enhancement measures required in the permit in accordance with § 780.16 or § 784.16 of this chapter, in the event of forfeiture.

(c) Phase II reclamation.

(1) The regulatory authority may release an additional amount of performance bond after you complete Phase II reclamation, which consists of -

(i) Soil replacement and redistribution of organic materials (if not accomplished as part of Phase I reclamation);

(ii) Restoration of the hydrologic function of perennial and intermittent streams under § 816.57(f) or § 817.57(f) of this chapter; and

(iii) Successfully establishing revegetation on the area in accordance with the approved reclamation plan, including any streamside vegetative corridors required by §§ 816.56(c), 816.57(d), 817.56(c), and 817.57(d) of this chapter. The regulatory authority must establish standards defining successful establishment of vegetation for Phase II reclamation.

(2) The amount of performance bond that the regulatory authority retains after Phase II release must be sufficient to cover the cost of having a third party reestablish revegetation for the revegetation responsibility period under § 816.115 or § 817.115 of this chapter. In addition, it must be adequate to ensure that the regulatory authority will have sufficient funds for a third party to complete the remaining portion of the reclamation plan, including restoration of the ecological function of perennial and intermittent streams under § 816.57(g) or § 817.57(g) of this chapter and completion of any fish and wildlife enhancement measures required in the permit in accordance with § 780.16 or § 784.16 of this chapter, in the event of forfeiture.

(3) The regulatory authority may not release any part of the performance bond under paragraph (c)(1) of this section if the lands to which the release would apply are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by subchapter K of this chapter.

(4) The regulatory authority may not release any part of the performance bond under paragraph (c)(1) of this section until soil productivity for all prime farmland historically used for cropland on the area to which the release would apply has returned to levels of yield equivalent to yields from nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed under part 823 of this chapter.

(5) When the regulatory authority has approved retention of a silt dam as a permanent impoundment under § 816.49(b) or § 817.49(b) of this chapter, the regulatory authority may approve Phase II bond release for the area of the impoundment if the requirements of § 816.55 or § 817.55 of this chapter have been met and provisions for sound future maintenance by the operator or the landowner have been made with the regulatory authority.

(d) Phase III reclamation.

(1) The regulatory authority must release the remaining portion of the performance bond upon the completion of Phase III reclamation, which consists of successful completion of all surface coal mining and reclamation activities and expiration of the revegetation responsibility period under § 816.115 or § 817.115 of this chapter.

(2) The regulatory authority may not fully release any performance bond under provisions of this section until all applicable reclamation requirements of the regulatory program and the permit are fully met. Among other things, those requirements include restoration of the ecological function of perennial and intermittent streams under § 816.57(g) or § 817.57(g) of this chapter and completion of any fish and wildlife enhancement measures required in the permit in accordance with § 780.16 or § 784.16 of this chapter.