Ohio Administrative Code|Rule 1501:13-7-06 | Performance security forfeiture criteria and procedures.

                                                
(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 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, 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.


Last updated November 30, 2021 at 2:29 PM