Ohio § 1513.08

§ 1513.08.

(A) After a coal mining and reclamation permit application has been approved, the applicant

shall file with the chief of the division of mineral resources management, on a form

prescribed and furnished by the chief, the performance security required under this

section that shall be payable to the state and conditioned on the faithful performance

of all the requirements of this chapter and rules adopted under it and the terms and

conditions of the permit. (B) Using the information contained in the permit application;  the requirements contained

in the approved permit and reclamation plan;  and, after considering the topography,

geology, hydrology, and revegetation potential of the area of the approved permit,

the probable difficulty of reclamation;  the chief shall determine the estimated cost

of reclamation under the initial term of the permit if the reclamation has to be performed

by the division of mineral resources management in the event of forfeiture of the

performance security by the applicant.  The chief shall send either written notice by certified mail or electronic notice

with acknowledgment of receipt of the amount of the estimated cost of reclamation

to the applicant.  The applicant shall send either written notice or electronic notice with acknowledgment

of receipt to the chief indicating the method by which the applicant will provide

the performance security pursuant to division (C) of this section. (C) The applicant shall provide the performance security in an amount using one of the

following: (1) If the applicant elects to provide performance security without reliance on the reclamation

forfeiture fund created in section 1513.18 of the Revised Code , the amount of the estimated cost of reclamation as determined by the chief under

division (B) of this section for the increments of land on which the operator will

conduct a coal mining and reclamation operation under the initial term of the permit

as indicated in the application; (2) If the applicant elects to provide performance security together with reliance on

the reclamation forfeiture fund through payment of the additional tax on the severance

of coal that is levied under division (A)(8) of section 5749.02 of the Revised Code , an amount of twenty-five hundred dollars per acre of land on which the operator

will conduct coal mining and reclamation under the initial term of the permit as indicated

in the application.  In order for an applicant to be eligible to provide performance security in accordance

with division (C)(2) of this section, the applicant, an owner and controller of the

applicant, or an affiliate of the applicant shall have held a permit issued under

this chapter for any coal mining and reclamation operation for a period of not less

than five years. If a permit is transferred, assigned, or sold, the transferee is not eligible to provide

performance security under division (C)(2) of this section if the transferee has not

held a permit issued under this chapter for any coal mining and reclamation operation

for a period of not less than five years.  This restriction applies even if the status or name of the permittee otherwise remains

the same after the transfer, assignment, or sale. In the event of forfeiture of performance security that was provided in accordance

with division (C)(2) of this section, the difference between the amount of that performance

security and the estimated cost of reclamation as determined by the chief under division

(B) of this section shall be obtained from money in the reclamation forfeiture fund

as needed to complete the reclamation. The performance security provided under division (C) of this section for the entire

area to be mined under one permit issued under this chapter shall not be less than

ten thousand dollars. The performance security shall cover areas of land affected by mining within or immediately

adjacent to the permitted area, so long as the total number of acres does not exceed

the number of acres for which the performance security is provided.  However, the authority for the performance security to cover areas of land immediately

adjacent to the permitted area does not authorize a permittee to mine areas outside

an approved permit area.  As succeeding increments of coal mining and reclamation operations are to be initiated

and conducted within the permit area, the permittee shall file with the chief additional

performance security to cover the increments in accordance with this section.  If a permittee intends to mine areas outside the approved permit area, the permittee

shall provide additional performance security in accordance with this section to cover

the areas to be mined. If an applicant or permittee is not eligible to provide performance security in accordance

with division (C)(2) of this section, the applicant or permittee shall provide performance

security in accordance with division (C)(1) of this section in the full amount of

the estimated cost of reclamation as determined by the chief for a permitted coal

preparation plant or coal refuse disposal area that is not located within a permitted

area of a mine.  If an applicant for a permit for a coal preparation plant or coal refuse disposal

area or a permittee of a permitted coal preparation plant or coal refuse disposal

area that is not located within a permitted area of a mine has held a permit issued

under this chapter for any coal mining and reclamation operation for a period of five

years or more, the applicant or permittee may provide performance security for the

coal preparation plant or coal refuse disposal area either in accordance with division

(C)(1) of this section in the full amount of the estimated cost of reclamation as

determined by the chief or in accordance with division (C)(2) of this section in an

amount of twenty-five hundred dollars per acre of land with reliance on the reclamation

forfeiture fund.  If a permittee has previously provided performance security under division (C)(1)

of this section for a coal preparation plant or coal refuse disposal area that is

not located within a permitted area of a mine and elects to provide performance security

in accordance with division (C)(2) of this section, the permittee shall submit written

notice to the chief indicating that the permittee elects to provide performance security

in accordance with division (C)(2) of this section.  Upon receipt of such a written notice, the chief shall release to the permittee

the amount of the performance security previously provided under division (C)(1) of

this section that exceeds the amount of performance security that is required to be

provided under division (C)(2) of this section. (D) A permittee's liability under the performance security shall be limited to the obligations

established under the permit, which include completion of the reclamation plan in

order to make the land capable of supporting the postmining land use that was approved

in the permit.  The period of liability under the performance security shall be for the duration

of the coal mining and reclamation operation and for a period coincident with the

operator's responsibility for revegetation requirements under section 1513.16 of the Revised Code . (E) The amount of the estimated cost of reclamation determined under division (B) of

this section and the amount of a permittee's performance security provided in accordance

with division (C)(1) of this section shall be adjusted by the chief as the land that

is affected by mining increases or decreases or if the cost of reclamation increases

or decreases.  If the performance security was provided in accordance with division (C)(2) of this

section and the chief has issued a cessation order under division (D)(2) of section 1513.02 of the Revised Code for failure to abate a violation of the contemporaneous reclamation requirement under division (A)(15) of section 1513.16 of the Revised Code , the chief may require the permittee to increase the amount of performance security

from twenty-five hundred dollars per acre of land to five thousand dollars per acre

of land. The chief shall notify the permittee, each surety, and any person who has a property

interest in the performance security and who has requested to be notified of any proposed

adjustment to the performance security.  The permittee may request an informal conference with the chief concerning the proposed

adjustment, and the chief shall provide such an informal conference. If the chief increases the amount of performance security under this division, the

permittee shall provide additional performance security in an amount determined by

the chief.  If the chief decreases the amount of performance security under this division, the

chief shall determine the amount of the reduction of the performance security and

send either written notice or electronic notice with acknowledgment of receipt of

the amount of reduction to the permittee.  The permittee may reduce the amount of the performance security in the amount determined

by the chief. (F) A permittee may request a reduction in the amount of the performance security by

submitting to the chief documentation proving that the amount of the performance security

provided by the permittee exceeds the estimated cost of reclamation if the reclamation

would have to be performed by the division in the event of forfeiture of the performance

security.  The chief shall examine the documentation and determine whether the permittee's

performance security exceeds the estimated cost of reclamation.  If the chief determines that the performance security exceeds that estimated cost,

the chief shall determine the amount of the reduction of the performance security

and send either written notice or electronic notice with acknowledgment of receipt

of the amount to the permittee.  The permittee may reduce the amount of the performance security in the amount determined

by the chief.  Adjustments in the amount of performance security under this division shall not

be considered release of performance security and are not subject to section 1513.16 of the Revised Code . (G) If the performance security is a bond, it shall be executed by the operator and a

corporate surety licensed to do business in this state.  If the performance security is a cash deposit or negotiable certificates of deposit

of a bank or savings and loan association, the bank or savings and loan association

shall be licensed and operating in this state.  The cash deposit or market value of the securities shall be equal to or greater

than the amount of the performance security required under this section.  The chief shall review any documents pertaining to the performance security and

approve or disapprove the documents.  The chief shall notify the applicant of the chief's determination. (H) If the performance security is a bond, the chief may accept the bond of the applicant

itself without separate surety when the applicant demonstrates to the satisfaction

of the chief the existence of a suitable agent to receive service of process and a

history of financial solvency and continuous operation sufficient for authorization

to self-insure or bond the amount. (I) Performance security provided under this section may be held in trust, provided that

the state is the primary beneficiary of the trust and the custodian of the performance

security held in trust is a bank, trust company, or other financial institution that

is licensed and operating in this state.  The chief shall review the trust document and approve or disapprove the document.  The chief shall notify the applicant of the chief's determination. (J) If a surety, bank, savings and loan association, trust company, or other financial

institution that holds the performance security required under this section becomes

insolvent, the permittee shall notify the chief of the insolvency, and the chief shall

order the permittee to submit a plan for replacement performance security within thirty

days after receipt of notice from the chief.  If the permittee provided performance security in accordance with division (C)(1)

of this section, the permittee shall provide the replacement performance security

within ninety days after receipt of notice from the chief.  If the permittee provided performance security in accordance with division (C)(2)

of this section, the permittee shall provide the replacement performance security

within one year after receipt of notice from the chief, and, for a period of one year

after the permittee's receipt of notice from the chief or until the permittee provides

the replacement performance security, whichever occurs first, money in the reclamation

forfeiture fund shall be the permittee's replacement performance security in an amount

not to exceed the estimated cost of reclamation as determined by the chief. (K) If a permittee provided performance security in accordance with division (C)(1) of

this section, the permittee's responsibility for repairing material damage and replacement

of water supply resulting from subsidence shall be satisfied by either of the following: (1) The purchase prior to mining of a noncancelable premium-prepaid liability insurance

policy in lieu of the permittee's performance security for subsidence damage.  The insurance policy shall contain terms and conditions that specifically provide

coverage for repairing material damage and replacement of water supply resulting from

subsidence. (2) The provision of additional performance security in the amount of the estimated cost

to the division of mineral resources management to repair material damage and replace

water supplies resulting from subsidence until the repair or replacement is completed.  However, if such repair or replacement is completed, or compensation for structures

that have been damaged by subsidence is provided, by the permittee within ninety days

of the occurrence of the subsidence, additional performance security is not required.  In addition, the chief may extend the ninety-day period for a period not to exceed

one year if the chief determines that the permittee has demonstrated in writing that

subsidence is not complete and that probable subsidence-related damage likely will

occur and, as a result, the completion of repairs of subsidence-related material damage

to lands or protected structures or the replacement of water supply within ninety

days of the occurrence of the subsidence would be unreasonable. (L) If the performance security provided in accordance with this section exceeds the

estimated cost of reclamation, the chief may authorize the amount of the performance

security that exceeds the estimated cost of reclamation together with any interest

or other earnings on the performance security to be paid to the permittee. (M) A permittee that held a valid coal mining and reclamation permit immediately prior

to April 6, 2007, shall provide, not later than a date established by the chief, performance

security in accordance with division (C)(1) or (2) of this section, rather than in

accordance with the law as it existed prior to that date, by filing it with the chief

on a form that the chief prescribes and furnishes.  Accordingly, for purposes of this section, “ applicant ” is deemed to include such a permittee. (N) As used in this section: (1) “ Affiliate of the applicant ” means an entity that has a parent entity in common with the applicant. (2) “ Owner and controller of the applicant ” means a person that has any relationship with the applicant that gives the person

authority to determine directly or indirectly the manner in which the applicant conducts

coal mining operations.