SECTION 37.9170. Financial Assurance Requirements for Reclamation and Restoration

(a) In addition to the requirements of this subchapter, owners and operators required to demonstrate financial assurance for reclamation or restoration must comply with §§37.141, 37.151, and 37.161 of this title (relating to Increase in Current Cost Estimate, Decrease in Current Cost Estimate, and Establishment of a Standby Trust) and Subchapter A of this chapter (relating to General Financial Assurance Requirements), except:

(1) §37.21 of this title (relating to Wording and Approval of Mechanisms);

(2) §37.31 of this title (relating to Submission of Documents);

(3) §37.52 of this title (relating to Use of a Universal Financial Assurance Mechanism for Multiple Facilities and Program Areas); and

(4) §37.161 of this title.

(b) The owner or operator of each facility required by this chapter to provide financial assurance for reclamation or restoration must establish financial assurance in an amount no less than the current cost estimate.

(c) The mechanisms submitted for compliance with this subchapter must be worded as they appear in this subchapter. The executive director shall determine the acceptability of the mechanisms submitted.

(d) An owner or operator required by this subchapter to provide financial assurance must submit an originally signed financial assurance mechanism with the application for a general or individual permit required under Chapter 311 of this title (relating to Watershed Protection). The signed financial assurance mechanism must be effective at the time it is submitted.

(e) Owners or operators may use a single financial assurance mechanism as specified in this subchapter for both reclamation and restoration. The amount of the funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each individual purpose.

(f) The owner or operator of a facility required by this subchapter to provide financial assurance for reclamation or restoration shall provide continuous financial assurance until the executive director provides written consent to terminate in accordance with §37.61 of this title (relating to Termination of Mechanisms).

(g) The executive director may call on the financial assurance mechanism(s) when an owner or operator who is required to comply with this chapter has:

(1) failed to perform reclamation or restoration when required;

(2) failed to provide an alternate financial assurance mechanism, when required; or

(3) failed to provide continuous financial assurance coverage.

(h) An owner or operator who uses a surety bond or an irrevocable letter of credit to satisfy the requirements of this subchapter shall establish a standby trust. The standby trust must meet the requirements of §37.161 of this title except that the wording of a standby trust agreement must follow §37.9190 of this title (relating to Trust Fund Wording) and the requirements indicated in §37.9185 of this title (relating to Trust Fund Requirements) rather than the citations reflected in §37.161 of this title.

Source Note: The provisions of this §37.9170 adopted to be effective August 3, 2006, 31 TexReg 5971