Sec. 136. Financial assurance
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Subject to public notice and comment, and after a permit is issued under this subtitle and before any exploration or operations begin under the permit, the operator shall file with the Secretary, or for National Forest System lands the Secretary of Agriculture, evidence of financial assurance payable to the United States. The financial assurance shall be provided in the form of a surety bond, a trust fund, letters of credits, government securities, certificates of deposit, cash, or an equivalent form approved by such Secretary.
The financial assurance shall cover all lands within the initial permit area and all affected waters that may require restoration, treatment, or other management as a result of mineral activities, and shall be extended to cover all lands and waters added pursuant to any permit modification made under section 133(f) (relating to exploration permits) or section 134(e) (relating to operations permits), or affected by mineral activities. The amount of the financial assurance required under this section shall be sufficient to assure the completion of reclamation and restoration satisfying the requirements of this title if the work were to be performed by the Secretary concerned in the event of forfeiture, including the construction and maintenance costs for any treatment facilities necessary to meet Federal and State environmental requirements.
The calculation of such amount shall take into account the maximum level of financial exposure which shall arise during the mineral activity and administrative costs associated with a government agency reclaiming the site. The financial assurance required under this section shall be held for the duration of the mineral activities and for an additional period to cover the operator’s responsibility for reclamation, restoration, and long-term maintenance, and effluent treatment as specified in subsection (g).
The amount of the financial assurance and the terms of the acceptance of the assurance may be adjusted by the Secretary concerned from time to time as the area requiring coverage is increased or decreased, or where the costs of reclamation or treatment change, or pursuant to section 134(f) (relating to temporary cessation of operations), but the financial assurance shall otherwise be in compliance with this section. The Secretary concerned shall review the financial guarantee every 3 years and as part of the permit application review under section 134(c).
Upon request, and after notice and opportunity for public comment, and after inspection by the Secretary, or for National Forest System lands, the Secretary of Agriculture, such Secretary may, after consultation with the Administrator of the Environmental Protection Agency, release in whole or in part the financial assurance required under this section if the Secretary makes both of the following determinations: A determination that reclamation or restoration covered by the financial assurance has been accomplished as required by this title.
A determination that the terms and conditions of any other applicable Federal requirements, and State requirements applicable pursuant to cooperative agreements under section 138, have been fulfilled. The release referred to in subsection
(e)shall be according to the following schedule: After the operator has completed any required backfilling, regrading, and drainage control of an area subject to mineral activities and covered by the financial assurance, and has commenced revegetation on the regraded areas subject to mineral activities in accordance with the approved plan, that portion of the total financial assurance secured for the area subject to mineral activities attributable to the completed activities may be released except that sufficient assurance must be retained to address other required reclamation and restoration needs and to assure the long-term success of the revegetation. After the operator has completed successfully all remaining mineral activities and reclamation activities and all requirements of the operations plan and the reclamation plan, and all other requirements of this title have been fully met, including the requirements of subsection
(g)of this section, the remaining portion of the financial assurance may be released. During the period following release of the financial assurance as specified in paragraph (1), until the remaining portion of the financial assurance is released as provided in paragraph (2), the operator shall be required to comply with the permit issued under this subtitle. Notwithstanding section 137(b)(4), where any discharge or other water-related condition resulting from the mineral activities requires treatment in order to meet the applicable effluent limitations and water quality standards, the financial assurance shall include the estimated cost of maintaining such treatment for the projected period that will be needed after the cessation of mineral activities. The portion of the financial assurance attributable to such estimated cost of treatment shall not be released until the discharge has ceased for a period of 5 years, as determined by ongoing monitoring and testing, or, if the discharge continues, until the operator has met all applicable effluent limitations and water quality standards for 5 full years without treatment. If the Secretary, or for National Forest System lands, the Secretary of Agriculture, determines, after final release of financial assurance, that an environmental hazard resulting from the mineral activities exists, or the terms and conditions of the explorations or operations permit of this title were not fulfilled in fact at the time of release, such Secretary shall issue an order under section 146 requiring the claim holder or operator (or any person who controls the claim holder or operator) to correct the condition such that applicable laws and regulations and any conditions from the plan of operations are met.