Section 53-9-65 - Release of bond; objections; hearing; bond forfeiture(1) The permittee may file an application with the permit board for the release of all or part of a performance bond or other collateral. The permittee and the permit board shall give notice of the pending bond release application by publication in the form as the commission by regulation may require. The permit board, after adequate inspection and evaluation of the reclamation work involved, shall decide whether or not to release all or part of the bond or other collateral and shall notify the permittee in writing of its decision. If the permit board's decision is not to release all or part of the bond or other collateral, the permit board shall state in writing the reasons for its decision and recommend corrective actions necessary to secure the release.(2) The permit board may release in whole or in part the bond or other collateral if the permit board is satisfied the reclamation covered by the bond or other collateral or portion thereof has been accomplished as required by this chapter according to the following schedule: (a) When the operator completes the backfilling, regrading and drainage control of a bonded area in accordance with the approved mining and reclamation plan, up to sixty percent (60%) of the bond or other collateral for the applicable permit area may be released, but the amount of the unreleased portion of the bond or other collateral shall not be less than the amount necessary to assure completion of the reclamation work by a third party in the event of default by the operator.(b) After revegetation has been established on the regraded mined lands in accordance with the approved mining and reclamation plan, the permit board, when determining the amount of bond or other collateral to be released after successful revegetation has been established, shall retain that amount of bond or other collateral for the revegetated area which would be sufficient for a third party to cover the cost of reestablishing revegetation and for the period specified for operator responsibility in the regulations promulgated under Section 53-9-45 for reestablishing revegetation. No part of the bond or other collateral shall be released under this paragraph if the lands to which the release would be applicable are contributing suspended solids to streamflow or runoff outside the permit area in excess of the requirements set by the regulations promulgated under Section 53-9-45, or until soil productivity for prime farmlands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices as determined from the soil survey performed in accordance with the regulations promulgated under Section 53-9-25. If a silt dam is to be retained as a permanent impoundment under the regulations promulgated under Section 53-9-45, the portion of bond or other collateral may be released under this paragraph if provisions for sound future maintenance by the operator or the landowner have been made with and approved by the permit board.(c) When the operator has completed successfully all surface coal mining and reclamation activities, the remaining portion of the bond or other collateral may be released, but shall not be released before the expiration of the period specified for operator responsibility in the regulations promulgated under Section 53-9-45. No bond shall be fully released until all reclamation requirements of this chapter are fully met.(3) Any interested party or the responsible officer or head of any federal, state or local governmental agency which has jurisdiction by law or special expertise with respect to any environmental, social or economic impact involved in the operation, or is authorized to develop and enforce environmental standards with respect to the operations, may submit written comments on the proposed release from bond or other collateral, and request a public hearing concerning the bond release application under Section 49-17-29. The failure of any person to submit comments within the time required shall not preclude action by the permit board. Any request for a public hearing concerning the bond release application shall be made in writing within thirty (30) days after the last publication of the notice described in subsection (1) of this section. The permit board may on its own motion hold a public hearing concerning the bond release application. If requested, the permit board shall hold a public hearing to obtain comments from the public on the application for bond release. The date, time and location of the public hearings shall be advertised by the permit board in the same manner as provided for the publication of notice for advertisement of land ownership under Section 53-9-37. The last public hearing notice shall be published at least seven (7), but no more than fourteen (14) days before the scheduled public hearing date. If all persons requesting the public hearing stipulate agreement before the requested public hearing, the public hearing may be cancelled at the discretion of the permit board.(4) Within thirty (30) days after the permit board takes action on the bond release application as recorded in the minutes of the permit board, any person who filed a written comment or requested or participated in the public hearing under this subsection may request a formal hearing before the permit board regarding its initial decision to grant or deny the bond release. The formal hearing shall be conducted as provided by Section 49-17-29. Upon conclusion of the formal hearing, the permit board shall enter into its minutes its final decision affirming, modifying or reversing its prior action on the bond release application. Any appeal from that decision may be taken by any person who participated as a party in the formal hearing in the manner provided in Section 49-17-29.(5)(a) If a surface coal mining and reclamation operation is not proceeding in accordance with this chapter or the permit, the operation represents an imminent threat to the public health, welfare and the environment, and the operator has failed, within thirty (30) days after written notice to the operator and opportunity for a formal hearing, to take appropriate corrective action, a forfeiture proceeding may be commenced against the operator for any performance bond or other collateral posted by the operator.(b) A forfeiture proceeding against any performance bond or other collateral shall be commenced and conducted according to Sections 49-17-31 through 49-17-41.(c) If the commission orders forfeiture of any performance bond or other collateral, the entire sum of the performance bond or other collateral shall be forfeited to the department. The funds from the forfeited performance bond or other collateral shall be used to pay for reclamation of the permit area and remediation of any offsite damages resulting from the operation. Any surplus performance bond or other collateral funds shall be refunded to the operator or corporate surety.(d) Forfeiture proceedings shall be before the commission and an order of the commission under this subsection shall be a final order. If the commission determines that forfeiture of the performance bond or other collateral should be ordered, the department shall have the immediate right to all funds of any performance bond or other collateral, subject only to review and appeals allowed under Section 49-17-41.(e) If the operator cannot be located for purposes of notice, the department shall send notice of the forfeiture proceeding, certified mail, return receipt requested, to the operator's last known address. The department shall also publish notice of the forfeiture proceeding in the same manner as provided for the publication of notice for the advertisement of land ownership under Section 53-9-37. Any formal hearing on the bond forfeiture shall be set at least thirty (30) days after the last notice publication.(f) If the performance bond or other collateral is insufficient to cover the costs of reclamation of the permit area or remediation of any offsite damages, the commission may initiate a civil action to recover the deficiency amount in the county in which the surface coal mining operation is located.(g) If the commission initiates a civil action under this section, the commission shall be entitled to any sums necessary to complete reclamation of the permit area and remediate any offsite damages resulting from that operation and attorney's fees.Laws, 1979, ch. 477, § 27; Laws, 1997, ch. 306, § 31, eff. 3/10/1997.