TITLE 47

MINES AND MINING

CHAPTER 15

MINED LAND RECLAMATION

47-1512.   financial assurance — Requisites. (a) Prior to conducting any mining operations on a mine panel covered by an approved reclamation plan or operating a cyanidation facility covered by an approved permanent closure plan, an operator shall submit to the board financial assurance meeting the requirements of this section.

(1)  The initial reclamation financial assurance filed prior to conducting any mining operations on a mine panel shall be in an amount determined by the board to be the estimated reasonable costs of reclamation required in this chapter, in the event of failure to reclaim by an operator, of affected lands proposed to be mined during the next calendar year designated by the operator pursuant to section 47-1506(a)(1)(vi), Idaho Code, and subsection (b) of this section.

(2)  The initial permanent closure financial assurance filed prior to operating a cyanidation facility shall be in an amount determined by the board to be the estimated reasonable costs to complete the activities specified in the permanent closure plan required in this chapter, in the event of the failure of an operator to complete those activities. In setting such amount, the board shall avoid duplication with financial assurance deposited with other governmental agencies.

(3)  The determination of the financial assurance amount shall constitute a final order subject to judicial review as set forth in subsection (a) of section 47-1514, Idaho Code. In lieu of any financial assurance required hereunder, the operator may deposit cash and governmental securities with the board, in an amount equal to that of the required financial assurance, on the conditions as prescribed in this section.

(b)  Prior to the time that lands designated to become affected lands on a mine panel, in addition to those designated pursuant to section 47-1506(a)(1)(vi), Idaho Code, become affected land, the operator shall submit to the board financial assurance meeting the requirements of section 47-1512(c), Idaho Code, which shall be in the amount necessary to ensure the performance of the duties of the operator under this chapter as to such affected lands actually proposed to be mined within the next calendar year. If additional acreage is subsequently proposed to be mined by an operator, financial assurance shall be in an amount determined by the board to be the estimated reasonable costs of reclamation required by this chapter, in the event of failure to reclaim by an operator, of affected lands proposed to be mined during the next calendar year.

(c)  For mining operations with affected land greater than five (5) acres, the financial assurance amount shall be based on the estimated reasonable costs of completing reclamation required in this chapter using standard estimating techniques, including indirect costs, developed by the board. For all other mining operations, the financial assurance for reclamation submitted pursuant to this chapter shall not exceed fifteen thousand dollars ($15,000) for any given acre of such affected land. The board may require financial assurance in excess of fifteen thousand dollars ($15,000) for any given acre of affected land only when the following conditions have been met:

(1)  The board has determined that such financial assurance is necessary to meet the requirements of sections 47-1506, 47-1509, 47-1510 and 47-1511, Idaho Code.

(2)  The board has delivered to the operator, in writing, a notice setting forth the reasons it believes such financial assurance is necessary.

(3)  The board has conducted a hearing where the operator is allowed to give testimony to the board concerning the amount of the proposed financial assurance. The hearing shall be held under such rules as promulgated by the board. This requirement for a hearing may be waived, in writing, by the operator. Any hearing held shall, at the discretion of the director, extend the time, up to thirty (30) days, in which the board must act on a plan submitted.

(d)  For a cyanidation facility with affected land greater than five (5) acres, the financial assurance amount shall be based on the estimated reasonable costs to complete reclamation required under this chapter using standard estimating techniques, including indirect costs, developed by the board. For all other cyanidation facilities, the financial assurance submitted for permanent closure of a cyanidation facility pursuant to this chapter shall not exceed five million dollars ($5,000,000). The board may require financial assurance in excess of five million dollars ($5,000,000) for a cyanidation facility only when the following conditions have been met:

(1)  The board has determined that such financial assurance is necessary to meet the requirements of this chapter.

(2)  The board has delivered to the operator, in writing, a notice setting forth the reasons it believes such financial assurance is necessary.

(3)  The board has conducted a hearing where the operator is allowed to give testimony to the board concerning the amount of the proposed financial assurance. The hearing shall be held under such rules as promulgated by the board. This requirement for a hearing may be waived, in writing, by the operator. Any hearing held shall, at the discretion of the director, extend the time, up to sixty (60) days, in which the board must act on the permanent closure plan submitted.

(e)  Any financial assurance required under this chapter to be filed and maintained with the board shall be in such form as the board prescribes, payable to the state of Idaho, conditioned that the operator shall faithfully perform all requirements of this chapter and comply with all rules of the board in effect as of the date of approval of the plan in accordance with the provisions of this chapter. Further, any financial assurance provided to another governmental agency that also meets the requirements in this section shall be deemed to be sufficient for the purposes of this chapter.

(f)  Financial assurance filed as prescribed in this section shall not be canceled, except after not less than ninety (90) days’ notice to the board. Upon failure of the operator to make substitution of financial assurance prior to the effective date of cancellation of the financial assurance or within thirty (30) days following notice of cancellation by the board, whichever is later, the board shall have the right to issue a cease and desist order and seek injunctive relief to stop the operator from conducting operations covered by such financial assurance until such substitution has been made.

(g)  If the license to do business in this state of any surety, upon a bond filed with the board pursuant to this chapter, shall be suspended or revoked, the operator, within thirty (30) days after receiving notice thereof from the board, shall substitute for such surety alternative financial assurance in accordance with this section. Upon failure of the operator to make substitution of financial assurance, the board shall have the right to issue a cease and desist order and seek injunctive relief to stop the operator from conducting operations covered by such financial assurance until such substitution has been made.

(h)  When an operator shall have completed all or a portion of reclamation requirements, or all or a portion of any post-closure activity, under the provisions of this chapter as to any portion of affected land or any post-closure activity, he may notify the board. Within thirty (30) days after the receipt of such notice, the board shall notify the operator as to whether or not the reclamation or post-closure activity performed meets the requirements of the reclamation plan pertaining to the land in question.

(1)  Upon the determination by the board that the requirements of the reclamation plan in question have been substantially met as to said lands or such activity, the amount of financial assurance in effect as to such lands or such activity shall be reduced by an amount designated by the board to reflect the reclamation done.

(2)  Upon a determination by the board that the requirements of the reclamation plan in question have not been substantially met as to said lands or such activity, it shall deliver to the operator, in writing, a notice of rejection of the request for financial assurance release and shall set forth in said notice the reasons for such rejection, the factual findings upon which such rejection is based, the manner in which the reclamation fails to fulfill the requirements of the reclamation plan, and the changes necessary to comply with the requirements of the reclamation plan.

(i)  When an operator shall have completed an activity specified in an approved permanent closure plan, he may notify the board. Within thirty (30) days after the receipt of such notice, the board shall notify the operator as to whether or not the activity performed meets the requirements of the permanent closure plan. In determining whether or not an activity under the statutory responsibility of the department of environmental quality meets the requirements of the permanent closure plan, the board shall consult with that department.

(1)  Upon the determination by the board that the activity meets the requirements of the permanent closure plan, the financial assurance for permanent closure shall be reduced by an amount designated by the board to reflect the activity completed.

(2)  Upon a determination by the board that the requirements of the permanent closure plan in question have not been met as to said lands, it shall deliver to the operator, in writing, a notice of rejection of the request for financial assurance release and shall set forth in said notice the reasons for such rejection, the factual findings upon which such rejection is based, the manner in which the activity fails to fulfill the requirements of the permanent closure plan, and the changes necessary to comply with the requirements of the permanent closure plan.

(j)  An operator may withdraw any land previously designated as affected land within a mine panel, provided that it is not already affected land, and in such event, he shall notify the board, and the amount of the bond in effect as to the lands in that mine panel shall be reduced by an amount designated by the board as the amount which would have been necessary to reclaim such lands.

(k)  Proof of financial assurance may be demonstrated by surety bond, corporate guarantee, letter of credit, certificate of deposit, trust fund, and any combination thereof or any other proof of financial assurance approved by the board.

(l)  An operator may provide proof of financial assurance by use of a trust fund, provided the following conditions are met:

(1)  The trust fund is managed by a third-party trustee;

(2)  The trust fund names the state of Idaho as beneficiary; and

(3)  The trust is initially funded in an amount at least equal to:

(i)   The financial assurance amount as estimated by this section;

(ii)  A specified schedule of payments into the fund; or

(iii) A pro-rata amount if used with another financial assurance mechanism.

(4)  The trustee shall invest the principal and income of the fund in accordance with general investment practices. Investments can include equities, bonds, and government securities.

(5)  The operator enters into a memorandum of agreement with the board that identifies the trustee, a range of investments, initial funding, schedule of payments, and expected rate of return.

(6)  The trust fund balance shall be reviewed by the board at a period not to exceed once every five (5) years and adjustments to the trust fund made to meet the conditions of the agreement and this chapter.

(m)  Following the permanent cessation of a mining operation, the board may determine that a post-closure period of greater than thirty (30) years is necessary only when the following conditions have been met:

(1)  The board has determined that such longer post-closure period is necessary to meet the requirements of sections 47-1506, 47-1509, 47-1510, and 47-1511, Idaho Code;

(2)  The board has delivered to the operator, in writing, a notice setting forth the reasons it believes a longer post-closure period is necessary;

(3)  The board has conducted a hearing where the operator is allowed to give testimony concerning the length of the post-closure period. The hearing shall be held under such rules as promulgated by the board. The requirement for a hearing may be waived by the operator; and

(4)  Any decision by the board under this subsection shall be considered a final order pursuant to section 47-1514, Idaho Code.

(n)  Any mining operation that is addressing water management, and any releases to the environment through a comprehensive environmental response, compensation and liability act (CERCLA) order, including any required financial assurance, shall not be required to submit financial assurance to the board for any activities covered by a CERCLA order.

History:

[47-1512, added 1971, ch. 206, sec. 12, p. 898; am. 1980, ch. 206, sec. 1, p. 471; am. 1985, ch. 123, sec. 1, p. 304; am. 1988, ch. 223, sec. 2, p. 426; am. 1997, ch. 269, sec. 4, p. 776; am. 2005, ch. 167, sec. 10, p. 519.; am. 2016, ch. 22, sec. 2, p. 29; am. 2019, ch. 226, sec. 12, p. 703.]