Chapter 7: Participating in Bond Release Proceedings

 
PARTICIPATING IN
 
 
BOND RELEASE
 
 
PROCEEDINGS
 
 
At the final stage of a mining operation, the state releases operators from the bond posted during the permitting stage. The purpose of the bond is to make sure that the regulatory agency has access to sufficient funds to pay for the reclamation of the affected land if operators fail to live up to the terms of their permits. Release of the bond releases the operator from any responsibility imposed by SMCRA for damages from the mining operation.   
 
    Participation at the permitting and enforcement stages will probably provide you with most of the technical information you will need to participate effectively in bond release proceedings. Put simply, the state should not release a bond unless operators have reclaimed the mined land in accordance with the terms of their permits and in the manner required by the applicable federal and state laws.

    The checklist at Appendix D was designed to guide you through the review of a bond release application. Note that the checklist is divided into three parts, consistent with the three phases of bond release authorized by the statute: (1) backfilling and grading; (2) revegetation; and (3) full reclamation under the standards of SMCRA.  Some operators, however, will not seek bond release until two or even all three phases are completed. 

    When an operator desires to have all or any portion of its bond released it must file an application with the appropriate state or federal agency and it must include a statement certifying that all relevant reclamation activities have been completed in accordance with the law.  The operator must also notify local landowners and local government officials, including water treatment authorities, of its application and advertise the application by publishing a notice in a local newspaper once a week for four consecutive weeks.[1] 

    The issues that are most likely to arise at the backfill and grading stage of reclamation have to do with the contour of the land.  Recall that the operator is generally required to restore the approximate original contour of the land.  Ask yourself whether the restored lands blend well with the surrounding terrain and whether proper drainage patterns have been restored.  Assess the land during or right after a big rain storm to see how well water flows through the land.  Keep in mind that moving dirt is the biggest expense an operator faces at a mine site and that accordingly, an operator will want to minimize this work. 

    The regulatory authority may release up to 60% of the total bond after the first phase of reclamation has been completed. Therefore, if the contours have not been properly restored and the Phase I bond has been released, the remaining bond may not be adequate to cover the additional reclamation that will be needed.  

    At the revegetation stage, the bond release process should generally take place during the growing season.  One important issue that can arise concerns the seed mixture that is used.  Native grasses are strongly preferred and non-native varieties may be used only if found to be both desirable and necessary.[2] On prime farmlands, the second phase bond cannot be released until “the soil productivity … has returned to equivalent levels of yield as nonmined land in the surrounding area….”[3]  All siltation structures must also be removed before phase two bond release.  As with the first phase, it may be helpful to view the reclaimed land immediately after a rain storm.  This should give you a pretty good idea as to how well the soils and vegetation are holding up against harsh weather.

    At the final bond release stage, the success of revegetation will likely show how successful the reclamation was overall.  On eastern coal lands, the final portion of the bond cannot be released until five years after successful revegetation and natural regeneration.  During the five year period, the operator may not seed, fertilize, irrigate, or perform other work designed to artificially enhance the vegetation.  On the western lands, the period for successful revegetation without artificial help is ten years.[4]

    The most difficult aspect of reclamation to evaluate is, not surpris­ingly, the post-mining surface and groundwater hydrology. Among other things, SMCRA requires coal operators to assure the protection of the quality and quantity of surface water systems from the adverse effects of mining; to restore the recharge capacity of the mined area to approximate pre-mining condi­tions; and, in Western states, to preserve the essential hydrologic functions of most alluvial valley floors.  The success of reclaiming water systems is an issue that can be raised at every phase of bond release but be sure to raise the issue as early in the process as possible to maximize the chance that something effective will be done to restore the pre-mining hydrologic conditions.

    If expert assistance is available to help you to evaluate the operator's reclamation success, use it. If not, be persistent in asking the state and federal agencies to supply you and the public with the information necessary to evaluate the post-mining hydrology. Are a sufficient number of wells being monitored over a sufficient period of time? Are there substantial inconsistencies in data from the same well? If so, question the accuracy of the monitoring devices. If the data suggest possible water quality or quantity problems, find out what will be done to correct them. Demand that the corrections be carried out and checked for effectiveness before the bond is released. If at one phase you find insufficient informa­tion about the success of this aspect of reclamation, ask that the applica­tion be denied or, at a minimum, that the operator provide the information before applying for the next phase.

    Finally, bear in mind that once the entire bond has been released, the mine is no longer considered a surface coal mining and reclamation operation under SMCRA. At that point, the authority to conduct periodic inspections and to take enforcement action for violations expires. Ac­cordingly, any problems that may develop after bond release will likely be borne not by the mining company but by the people who live in the communities around the mine.
 
Subpages (1): Chapter 7 Footnotes
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