Request for
Release of All or Part of Performance Bond or Deposit.
[Contingent Effective Date, See Compiler's notes.]
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A permittee may file with the commissioner a request for the release of all or part of a performance bond or deposit. A request for release of all or part of a performance bond or deposit shall indicate the location of the area and number of acres affected by the operation, the location of the area and number of acres of grading and revegetation accomplished by the permittee, and other information as the board may require by rules. If the request and the commissioner's inspection of the area affected show that the permittee is entitled to release of all or any portion of the bond or deposit, the commissioner shall approve the request and release all or a portion of the permittee's bond or deposit, as appropriate under this part.
If the commissioner does not approve the request, the bond or deposit shall not be released until the permittee corrects the deficiencies found by the commissioner.
A bond may be released on a portion of a permitted area if the permittee files a request containing the required information, the commissioner approves the request, and an inspection of the area affected shows compliance with the reclamation requirements of this part.
Within thirty (30) days after an application for bond or deposit release has been initiated and filed with the commissioner, the permittee shall submit a copy of an advertisement placed at least once a week for four (4) successive weeks in a newspaper of general circulation in the locality of the surface coal mining and reclamation operation. The advertisement is considered part of any bond release application and shall contain a notification of the precise location of the land affected, the number of acres, the permit number and the date that the permit was approved, the amount of the bond filed and the portion of the bond sought to be released, the type and appropriate dates of reclamation work performed, and a description of the results achieved as the results relate to the operator's approved plan.
In addition, as part of any bond release application, the permittee shall submit copies of letters that the operator has sent to adjoining landowners, local government bodies, planning agencies, and sewage and water treatment authorities or water companies, if applicable, in the locality in which the surface coal mining and reclamation operations took place, notifying them of the operator's intention to seek partial or total release from the bond.
Upon receipt of any notification and request under this section, the commissioner shall, within thirty (30) days, inspect and evaluate the reclamation work involved. The evaluation shall consider, but not be limited to, the degree of difficulty to complete or evaluate any remaining reclamation, whether pollution or diminution of surface or subsurface water is occurring, the probability of continuation of the pollution or diminution, and the estimated cost of abating or correcting it. The commissioner shall notify the permittee in writing of the commissioner's decision to release or not to release all or part of the performance bond or deposit within sixty (60) days from the filing of the request, if no public hearing is held, and if a public hearing is held, within thirty (30) days after the hearing date. The commissioner shall send a copy of any notification of a decision not to release all or part of a bond to the permittee's surety. The commissioner's decision may be appealed pursuant to subsection (i).
The commissioner may release all or part of the bond or deposit when the commissioner is satisfied that the reclamation covered by the bond or deposit, or portion of the bond or deposit, has been accomplished as required by this part. The remaining bond shall be sufficient to satisfy all final reclamation requirements.
When a permittee performs the backfilling, regrading, topsoiling, drainage control, site preparation, spoil treatments, mulching, and initial planting of the vegetative cover in accordance with the approved plan as noted on an annual report, the commissioner may issue to the permittee and the permittee's surety a partial release of sixty percent (60%) of the surety bond for each acre of the affected area with respect to which the approved reclamation plan has been carried out. The remaining bond shall be held for at least five (5) years after the last year of augmented seeding, fertilizing, irrigation, or other work to assure that all reclamation requirements have been successfully met. A portion of the remaining bond may be released prior to the elapsing of five (5) years in accordance with board rules.
The commissioner shall retain an amount of the bond for the affected area, which would be sufficient for a third party to cover the cost of all remaining reclamation work and reestablishing vegetation. The remainder of the bond or deposit shall not be released under subdivision (d)(2) so long as the disturbed lands are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by this part or until soil productivity for prime farmlands has returned to equivalent levels of yield as nonmined prime farmlands of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed pursuant to this part. When a silt dam or impoundment approved as part of the mining or reclamation plan is to be retained as a permanent impoundment pursuant to § 59-8-110, the portion of the bond may be released under subdivision (d)(1) so long as the silt dam or impoundment meets the post-mining land use criteria and water quality and quantity concerns, and provisions for sound future maintenance by the permittee or the landowner have been made with the commissioner.
The permittee shall not be denied access to the mining site for the purposes of completing or maintaining reclamation work because of the expiration of the permittee's lease, until the permittee's entire performance bond has been released.
If the commissioner disapproves the application for release of all or part of the bond, the commissioner shall notify the permittee and the permittee's surety, stating the reasons for disapproval and recommending specific corrective actions necessary to secure the release, and allowing the permittee an opportunity for a hearing. The notice and recommendation shall be handed to the permittee in person, or sent by certified mail, return receipt requested, addressed to the permanent address shown on the application for a permit. The notice shall specify how the permittee has failed to comply with this part or rules promulgated pursuant to this part.
When any application for total or partial bond release is filed with the commissioner, the commissioner shall notify the chief executive officer of the county in which the surface coal mining and reclamation operation is located by certified mail at least thirty (30) days prior to the release of all or a portion of the bond.
Any person with a valid legal interest, which might be adversely affected by release of all or a portion of the bond, or the responsible officer or head of any federal, state, or local governmental agency that has jurisdiction by law or special expertise with respect to any environmental, social, or economic impact involved in the operation, or development and enforcement of environmental standards with respect to such operations, has the right to file written objections to the proposed release from bond to the commissioner within thirty (30) days after the last publication of the newspaper notice provided for in subsection (b). If one (1) or more written objections to a release of bond is filed, and a hearing requested, the commissioner shall inform all the 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 in Nashville, at the option of the objector, within thirty (30) days of the request for a hearing. The commissioner shall advertise the date, time, and location of the public hearing in a newspaper of general circulation in the locality for two (2) consecutive weeks.
Without prejudice to the rights of the objectors or the applicant, or the responsibilities of the commissioner, the commissioner may convene an informal conference as provided for in this part to resolve written objections.
A petition for appeal may be filed by:
The applicant for release; or
By any aggrieved person who:
Provided written objections during the time period specified in subsection (g); or
Provided written or oral objections at the hearing or an informal conference whose appeal is based upon any of the issues that were provided to the commissioner in the written objections or in testimony at the hearing or an informal conference on the application.
For permits for which the department gives public notice of a draft of a bond release, any applicant or aggrieved person may base an appeal on any material change to conditions in the final release from those in the draft, unless the material change has been subject to additional opportunity for public comment.
Any petition for appeal under this subsection (i) shall be filed with the commissioner within thirty (30) days after public notice of the commissioner's decision to grant or deny the release.
Notwithstanding § 4-5-223 or any other law to the contrary, this subsection (i) is the exclusive means for obtaining administrative review of the commissioner's issuance or denial of a bond release. When a petition to appeal the commissioner's issuance or denial of a bond release is timely filed, the procedure for conducting the contested case shall be in accordance with § 59-8-120.