OAR 632-030-0021: Performance Bonds and Alternative Forms of Security

(1) No Operating Permit shall be issued or renewed until a bond or alternative form of security for a surface mining site is accepted by the Department. The bond or other security must be maintained until the Department determines that the surface mining site has been reclaimed in accordance with the approved reclamation plan. (2) The Department may accept performance bonds, security deposit assignments, letters of credit, or other security as authorized by ORS 517.810. Performance bonds must be provided by surety companies authorized to do business in Oregon. The security document submitted must be in a form acceptable to the Department. (3) A security submitted for multiple surface mining sites under the provisions of ORS 517.810(4) must be accompanied by a list showing the permits covered by the security, the amount of the bond applicable to each surface mining site, and the number of acres bonded at each site. The Department may accept a multiple site bond for sites operated by all members of an established trade association. (4) The Department shall determine the amount of the bond or other security required by estimating the cost of reclamation if the Department were to perform the reclamation. The Department may seek the advice of other agencies to determine the appropriate security amounts. (5) The Department may consider when determining the amount of security: (a) The size and geometry of the area proposed for disturbance and the projected disturbance over the next 12 months; (b) Supervision; (c) Mobilization; (d) Costs of equipment; (e) Equipment capability; (f) Costs of labor; (g) Removal or disposition of debris, junk, equipment, structures, foundations, and unwanted chemicals; (h) Reduction of hazards such as in-water slopes, highwalls, landslides, or other mass failure; (i) Disposition of oversize, rejects, scalpings, overburden; (j) Backfilling, contouring, or regrading and topsoil replacement; (k) Draining, establishment of drainage, and erosion control; (l) Soil tests; (m) Seedbed preparation, seeding, mulching, fertilizing, netting, tackifiers, or other stabilizing agents; (n) Tree and shrub planting; (o) Fencing; (p) Liability insurance. (6) Cost estimate information shall be derived from sources such as: (a) Comparable costs from similar projects; (b) Catalog prices; (c) Guides and cost estimates obtained from appropriate government and private sources; (d) Operator estimates; (e) Equipment handbooks. (7) Seed mixes, fertilizer rates, and other requirements will be derived from departmental experience combined with advice from such sources as the Oregon Department of Agriculture, Natural Resources Conservation Service, Oregon State University Extension Service, the Department of Transportation, the Bureau of Land Management, US Forest Service, and private sector experts. (8) The applicant may submit reclamation cost estimates for consideration by the Department. (9) The security amount shall be based on the total cost of reclamation. However, the Department may allow for the amount of the bond to be calculated and adjusted based upon the total area expected to be in a disturbed condition in the following year as a result of the surface mining or exploration if: (a) The Department determines that it can calculate the lesser amount with reasonable accuracy, and (b) The applicant agrees in writing to increase the security amount as directed by the Department based upon new information or changes in the areas disturbed by surface mining. (10) Security amounts shall not include construction of structures or comparable features such as “housing developments” or “industrial construction” even if included in a reclamation plan. (11)(a) The Department may reduce the bond or alternative form of security by an amount not to exceed 50 percent for a surface mine aggregate site that meets the following conditions: (A) The permittee has had a valid Operating Permit at the site for ten years; and (B) The permittee can demonstrate substantial financial ability to perform the reclamation in the approved reclamation plan. (b) The Department will consider the compliance history of the permittee in any bond reduction determination. (12) A decision of the Department regarding the estimated cost of reclamation or the type of acceptable security may be appealed to the Governing Board as provided in ORS 183.310 to 183.550. (13) The performance bond or alternate form of financial security is not required to cover the costs of excavation required by OAR 632-030-0023(3).