(1) The department may not release any portion of the performance bond until it finds that the permittee has met the requirements of the applicable reclamation phase as defined in this rule. The department may release portions of the performance bond applicable to a permit following completion of reclamation phases on the entire permit area or on incremental areas within the permit area.
(2) Release of any portion of the performance bond does not relieve the operator of liability for any corrective action necessary to comply with the Act, subchapters 3 through 13 of this chapter, and the permit until final bond release.
(3) Subject to the limitations of (5) and (6) of this rule, the maximum portion of the performance bond that may be released at any time on applicable areas is:
(a) 60% if reclamation phase I has been completed;
(b) the amount associated with soil replacement activities, if reclamation phase II has been completed;
(c) the amount associated with revegetation activities, if reclamation phase III has been completed; and
(d) the remaining portion of the performance bond, if reclamation phase IV has been completed.
(4) Acreage may be released from the permit area only after reclamation phase IV has been completed on applicable areas.
(5) The department may not release any portion of a performance bond applicable to a permit if such release would reduce the total remaining performance bond to an amount less than that necessary for the department to complete the approved reclamation plan, achieve compliance with the requirements of the Act, the rules adopted thereunder, and the permit, and abate any significant environmental harm to air, water, or land resources, or danger to the public health and safety which might occur prior to the release of all lands from the permit area. In all cases, the department shall retain performance bond in the amount of not less than $200 per acre until reclamation phase IV (final) bond release has been granted.
(6) For the purposes of these rules, reclamation phases are as follows:
(a) reclamation phase I is deemed to have been completed when the permittee completes backfilling, regrading, and drainage control in accordance with the approved reclamation plan and when all drill holes that are not approved to be retained as monitoring wells or that were not completely mined have been plugged in accordance with ARM 17.24.1005;
(b) reclamation phase II is deemed to have been completed when:
(i) soil replacement and spoil and soil tillage have been completed in accordance with the approved reclamation plan;
(ii) at least two growing seasons (spring and summer for two consecutive years) have elapsed since seeding or planting of the affected area;
(iii) vegetation is establishing that is consistent with the species composition, cover, production, density, diversity, and effectiveness required by the revegetation criteria in ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815 and the approved postmining land use;
(iv) soils are protected from accelerated erosion by the established vegetation;
(v) noxious weeds are controlled; and
(vi) with respect to prime farmlands, production has been returned to the level required by ARM 17.24.815.
(c) reclamation phase III is deemed to have been completed when:
(i) the applicable responsibility period (which commences with the completion of any reclamation treatments as defined in ARM 17.24.725) has expired and the revegetation criteria in ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, 17.24.731, and 17.24.815, as applicable to and consistent with the approved postmining land use are met;
(ii) a stable landscape has been established consistent with the approved postmining land use;
(iii) the lands are not contributing suspended solids to stream flow or runoff outside the permit area in excess of the requirements of ARM 17.24.633 or the permit; and
(iv) as applicable, the provisions of a plan approved by the department for the sound future management of any permanent impoundment by the permittee or landowner have been implemented to the satisfaction of the department; or
(v) the lands meet the special conditions provided in 82-4-235(4)(a), MCA;
(d) reclamation phase IV is deemed to have been completed when:
(i) all disturbed lands within any designated drainage basin have been reclaimed in accordance with the phase I, II, and III requirements;
(ii) fish and wildlife habitats and related environmental values have been restored, reclaimed, or protected in accordance with the Act, the rules, and the approved permit;
(iii) with respect to the hydrologic balance, disturbance has been minimized and offsite material damage has been prevented in accordance with the Act, the rules, and the approved permit;
(iv) alternative water sources to replace water supplies that have been adversely affected by mining and reclamation operations have been developed and are functional in accordance with the Act, the rules, and the approved permit;
(v) the reestablishment of essential hydrologic functions and agricultural productivity on alluvial valley floors has been achieved;
(vi) implementation of any alternative land use plan approved pursuant to ARM 17.24.821 and 17.24.823 has been successfully achieved; and
(vii) all other reclamation requirements of the Act, rules, and the permit have been met.
(7) Information from annual reports and monitoring data, generated pursuant to ARM 17.24.645, 17.24.646, 17.24.723, and 17.24.1129, and from department inspection reports may be used or referenced to support applications for bond release.
(8) Following final bond release, the department shall reassert jurisdiction under the Act and this chapter if it is demonstrated that the bond release or statement of reasons made pursuant to ARM 17.24.1114(4) was based upon fraud, collusion, or misrepresentation of a material fact.