15-57-316. Bond of operator.

15-57-316. Bond of operator. (a)(1)(A) Any bond provided in this subchapter to be filed with the Division of Environmental Quality by the operator shall be in such form as the division shall prescribe, payable to the State of Arkansas through the division, conditioned that the operator shall faithfully perform all requirements of this subchapter and comply with all rules and orders made in accordance with the provisions of this subchapter. (B) The bond shall be signed by the operator and a good and sufficient corporate surety authorized to do business in the United States. (2) The penalty of the bond shall be in an amount equal to the estimated cost of reclamation, as required in § 15-57-311(d). (3)(A) In the event that the division finds the cost of reclamation to be an underestimate, the division shall make use of available expertise to establish the estimated cost of reclamation, which shall be the amount of the bond. (B) In the event of a disagreement concerning the estimate of the proper amount of the bond, the division may retain independent expertise as is necessary to establish the amount of the bond. (4) The Arkansas Pollution Control and Ecology Commission shall promulgate rules concerning bonds and substituted security which will attempt to ensure that small operators are not precluded from development of mineral resources as a result of high bond amounts, but which will provide reasonable security. (b)(1) The division may accept cash, securities, or other collateral, including, but not limited to, letters of credit and mortgages on real property provided by the operator in an amount equal to that of the required bond as provided in subsection (a) of this section. (2) The bond or substituted security may be increased or reduced from time to time as provided in this subchapter. (3) The bond or substituted security shall be in effect and subject to forfeiture in accordance with this subchapter from and after the time that the operator has affected land in the process of open-cut mining or after the time a permit is granted by the division until the affected area has been reclaimed, approved, and released. (c)(1) Any bond or substituted security shall not be cancelled by the surety unless it has given no less than ninety (90) days' notice of the cancellation to the division. (2) In no event shall a bond be cancelled on an area that at the time of cancellation has become affected land under the provisions of this subchapter. (d)(1) If the license to do business of any surety upon a bond or substituted security filed with the division pursuant to this subchapter shall be suspended or revoked, the operator, within thirty (30) days after receiving notice of the revocation, shall substitute for the surety a licensed corporate surety. (2) Upon the failure of the operator to make substitution of the surety, the division shall suspend the permit of the operator until the substitution is made. (e)(1) The division shall give written notice to the operator of any violation of this subchapter or noncompliance with any of the rules or orders promulgated under this subchapter. (2) If corrective measures determined by the division, including, but not limited to, increase of the bond or substituted security, are not commenced or agreed to by the operator within a reasonable period of time to be determined by the division, the division may terminate the permit of the operator and forfeit the bond or substituted security. (3) If a permit has not been issued but a bond has been posted during the application process and this process will not be completed and there is affected land at the site, the division may forfeit the bond or substituted security as provided in § 15-57-317. (f) The division may reclaim any affected land for which a bond has been forfeited. (g)(1) Whenever an operator shall have completed all requirements under the provisions of this subchapter as to any affected land, it shall so notify the division. (2) If the division determines that the operator has completed reclamation requirements and achieved results appropriate to the use for which the affected land was reclaimed, the division shall release the operator from further obligations regarding the affected land and the penalty of the bond or substituted security shall be reduced accordingly. (h)(1) Upon partial completion of reclamation, the operator may submit a written request to the division for the purpose of proportionately reducing the amount of the bond or substituted security upon affected lands. (2) If the division determines that proper reclamation has been accomplished under the provisions of this subchapter on an area less than the total area of the affected area, the division shall proportionately reduce the amount of the bond or substituted security. (i) No operator shall be eligible to receive a new or renewed permit who has had a permit revoked, bond forfeited, or who has outstanding substantial unmitigated violations of this subchapter, including failure to reclaim, unless the division finds upon review a demonstrable change of circumstances justifying an exception to these prohibitions. (j) Liability under the bond or substituted security shall be for the duration of the open-cut mining operation and for that period required to establish successful reclamation of the affected area. (k) Nothing contained herein shall be deemed to preclude the right of the division to recover the actual cost of reclamation over and above the amount of bond.