Section 312IAC25-5-16. Performance bond release; requirements

   (a) A permittee may file a request with the department for the release of all or part of a performance bond or deposit. Within thirty (30) days after an application for bond or deposit release is filed with the department, the operator 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 operation. The advertisement must be part of any bond release application and shall include the following:

(1) The precise location of the land affected.

(2) The number of acres.

(3) The permittee's name.

(4) The permit number and the date approved.

(5) The amount of the bond filed and the portion sought to be released.

(6) The type and appropriate dates of reclamation work performed.

(7) A description of the results achieved relative to the operator's approved reclamation plan.

The advertisement shall also state that any person with a valid legal interest that might be adversely affected by release of the bond, or the responsible officer or head of any federal, Indiana, or local governmental agency that has jurisdiction by law or is authorized to develop and enforce environmental standards with respect to the operations, may file written comments or objections or may request a public hearing concerning the proposed release from bond with the department within thirty (30) days after the last publication of notice. The notice shall contain the address of the division for submission of comment and the calendar date for the close of the comment period. In addition, as part of any bond release application, the applicant shall submit copies of letters that the applicant has sent to adjoining property owners, local governmental bodies, planning agencies, and sewage and water treatment authorities or water companies in the locality in which the surface coal mining and reclamation activities took place, providing notification of the request to seek release from the bond.

  (b) The director may initiate an application for the release of a bond. If a bond release application is initiated by the director, the department shall perform the notification and certification requirements otherwise imposed on the permittee under this section.

  (c) The permittee shall include in the application for bond release a notarized statement that certifies that all applicable reclamation activities have been accomplished in accordance with the requirements of this article and the approved reclamation plan. The certification shall be submitted for each application or phase of bond release.

  (d) Within thirty (30) days after receipt of the notification and request, or as soon afterwards as weather conditions permit, the department shall conduct an inspection and evaluation of the reclamation work. The evaluation shall consider, among other things, the following:

(1) The degree of difficulty to complete any remaining reclamation.

(2) Whether pollution of surface and subsurface water is occurring.

(3) The probability pollution will continue.

(4) The estimated cost of abating the pollution.

The surface owner, agent, or lessee shall be given notice of the inspection by the director and may participate with the department in the inspection. The department shall notify, in writing, the permittee and any other interested person of a decision whether to release all or part of the performance bond or deposit within sixty (60) days after receipt of the request if no public hearing or informal conference is held under subsection (i) or (j) or if an informal conference is held under subsection (i) or public hearing is held under subsection (j) within thirty (30) days after the informal conference or public hearing is completed.

  (e) The department may release the bond or deposit, in whole or in part, upon a determination the reclamation covered by the bond or deposit or portion thereof has been accomplished as required by IC 14-34 according to the following schedule:

(1) Phase I. After the operator completes the backfilling, regrading, and drainage control of a bonded area under the approved reclamation plan, sixty percent (60%) of the bond or collateral for the applicable permit may be released.

(2) Phase II. After the operator establishes revegetation on the regraded mined lands under the approved reclamation plan, an additional twenty-five percent (25%) of the total original bond amount may be released. No part of the bond or deposit shall be released under this subdivision if the lands to which the release would be applicable are contributing suspended solids to the stream flow or run-off outside the permit area in excess of the limitations in IC 14-34 and 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 as determined from the soil survey performed under IC 14-34. If a siltation structure is to be retained as a permanent impoundment, a bond release may occur under this subdivision if provisions for sound future maintenance by the operator or the landowner are made with the department.

(3) Phase III. The department may release the remaining bond only after the:

(A) operator has successfully completed all surface coal mining and reclamation activities required in IC 14-34, this article, or the permit; and

(B) expiration of the period specified for operator responsibility in IC 14-34-10-2.

  (f) If the director disapproves the application for release of the bond or portion thereof, the director shall notify the permittee, the surety, and any person with an interest in collateral as provided for in section 12 of this rule, in writing:

(1) stating the reasons for disapproval; and

(2) recommending corrective actions necessary to secure the release and allowing an opportunity for a public hearing.

  (g) If an application is submitted for total or partial bond release, the department shall notify any municipality in which a surface coal mining operation is located by certified mail at least thirty (30) days before granting the release.

  (h) Any person with a valid legal interest that might be adversely affected by release of the bond or the responsible officer or head of any federal, state, or local government agency that has jurisdiction by law or is authorized to develop and enforce environmental standards with respect to the operation may file written objections to the proposed release and request a public hearing with the department within thirty (30) days after the last publication of the notice under subsection (a).

  (i) Upon receipt of written objection and a request for public hearing under subsection (h), the department, at the discretion of the director, may set a dispute under this section for an informal conference to resolve the objection. The informal conference shall be conducted within thirty (30) days after the close of the period for filing written comments or objections, or requests for public hearing as specified in subsection (a). The department shall make a record of the informal conference unless waived by all parties, which shall be accessible to all parties in electronic or stenographic format. The department shall furnish all parties with written findings based upon the informal conference stating the reasons for the findings. Conduct of an informal conference does not alter or prejudice the rights and responsibilities under this section of any of the following:

(1) A permittee.

(2) A person who files objections.

(3) The department.

(4) Another interested person.

  (j) If written objections and request for public hearing filed under subsection (h) are not resolved through an informal conference, or an informal conference is not conducted, the department shall hold a public hearing within a reasonable time following receipt of the request. The public hearing shall be conducted as follows:

(1) The date, time, and location of the public hearing shall be sent to the permittee and other interested parties to the hearing and advertised by the department in a newspaper of general circulation in the county where the surface coal mining and reclamation operation proposed for bond release is located one (1) time each week for two (2) consecutive weeks.

(2) The requirements of IC 4-21.5-3 shall not apply to the conduct of the public hearing. The public hearing shall be conducted by a representative of the director, who may accept oral or written statements and any other relevant information from any party to the public hearing. An electronic or stenographic record shall be made unless waived by all parties. The record shall be maintained and shall be accessible to the parties of the public hearing until final release of the applicant's performance bond or other equivalent guarantee under this article. The public hearing shall be conducted in the locality of the surface coal mining operation proposed for bond release, or, at the option of the person filing the hearing request, in Indianapolis, Indiana or Jasonville, Indiana.

(3) The department shall furnish all parties of the public hearing with the following:

(A) The written findings of the director based on the public hearing.

(B) The reasons for the findings.

(4) The public hearing shall be conducted within thirty (30) days after:

(A) receipt of the request for the hearing; or

(B) the date of an informal conference under subsection (i).

(5) If all parties requesting the public hearing withdraw their request before the conference is held, the public hearing may be canceled.

  (k) For the purpose of the public hearing conducted under subsection (j), the department shall have the authority to:

(1) administer oaths;

(2) subpoena witnesses or written or printed materials;

(3) compel the attendance of witnesses or production of the materials; and

(4) take evidence, including, but not limited to, inspections of the land affected and other surface coal mining operations carried on by the applicant and operator in the general vicinity.

A verbatim record, electronic or stenographic, of each public hearing shall be made and a transcript made available on the motion of any party or by order of the department.

  (l) A determination by the director under the provisions of this article or IC 14-34 is subject to administrative review under IC 4-21.5 and 312 IAC 3-1. The division of hearings of the commission shall, as soon as practicable, conduct any appropriate proceeding. The request for administrative review must be in writing and received by the commission within fifteen (15) days of receipt of the determination by the director. (Natural Resources Commission; 312 IAC 25-5-16; filed Jun 21, 2001, 2:53 p.m.: 24 IR 3506, eff Dec 1, 2001; errata filed Nov 20, 2001, 11:55 a.m.: 25 IR 1182; filed Apr 1, 2004, 3:00 p.m.: 27 IR 2455, eff Jan 1, 2005; errata filed Sep 8, 2004, 2:42 p.m.: 28 IR 214; filed Nov 6, 2006, 8:58 a.m.: 20061206-IR-312060068FRA, eff Oct 31, 2007, except subsections (d), (e), (f), (g), (h), (i), and (j), see 20071031-IR-312060068ONA; readopted filed May 29, 2007, 9:51 a.m.: 20070613-IR-312070146RFA; filed Apr 13, 2011, 11:16 a.m.: 20110511-IR-312100547FRA, eff Jul 25, 2012, except in subsection (j)(2), the phrase "unless waived by all parties" is not approved, see 20120725-IR-312100547ONA; readopted filed Sep 19, 2013, 10:12 a.m.: 20131016-IR-312130125RFA)