§ 88.03.080  Financial Assurances.
   (a)   Security Required as Condition of Approval.  To ensure that reclamation will proceed in compliance with the approved Reclamation Plan, the County shall require as a condition of approval security that will be released upon satisfactory performance.
      (1)   Acceptable Types of Security.  The applicant may post security in the form of a surety bond, trust fund, irrevocable letter of credit from an accredited financial institution, or other method acceptable to the County and the State Mining and Geology Board as specified in State regulations, and that the County reasonably determines are adequate to perform reclamation in compliance with the surface mining operation’s approved Reclamation Plan.
      (2)   Required Payees.  Financial assurances shall be made payable to the County and the State Department of Conservation.  In the case where the approved Reclamation Plan involves unpatented land under the control of the Bureau of Land Management (BLM), National Park Service, or U.S. Forest Service, the appropriate agency shall also be added as a third payee.
   (b)   Purpose of Security.  Financial assurances shall be required to ensure compliance with elements of the Reclamation Plan, including the following:
      (1)   Revegetation and landscaping requirements.
      (2)   Reclamation of aquatic or wildlife habitat.
      (3)   Reclamation of water bodies and water quality.
      (4)   Slope stability and erosion and drainage control.
      (5)   Disposal of hazardous materials.
      (6)   Removal of equipment and buildings that are not part of an approved end use.
      (7)   Other measures, if necessary.
   (c)   Cost Estimates for Security.
      (1)   Cost estimates for the financial assurance shall be submitted to the Department for review and approval before the operator actually obtains financial assurances.
      (2)   The Director shall forward a copy of the cost estimates, together with supporting documentation, to the State Department of Conservation for review.
      (3)   If the State Department of Conservation does not comment within 45 days of receipt of these estimates, it shall be assumed that the cost estimates are adequate, unless the County has reason to determine that additional costs may be incurred.
      (4)   The Director shall have the discretion to approve the financial assurance if it meets the requirements of this Chapter, SMARA, and State regulations.
   (d)   Cost Estimates to Determine Amount of Security Required.
      (1)   The amount of the financial assurance shall be based upon the estimated costs of reclamation stipulated in the approved Reclamation Plan, including any maintenance of reclaimed areas as may be required, subject to adjustment for the actual amount required to reclaim lands disturbed by surface mining activities since January 1, 1976, and new lands to be disturbed by surface mining activities in the upcoming year.
      (2)   Cost estimates shall be prepared by the mine operator, a licensed engineer, or other professional experienced in the reclamation of mined lands.
      (3)   The estimated amount of the financial assurance shall be based on the following:
         (A)   An analysis of physical activities necessary to implement the approved Reclamation Plan.
         (B)   The unit costs for each of the physical activities.
         (C)   The number of units of each of the physical activities.
         (D)   The actual administrative costs.
      (4)   Financial assurances to ensure compliance with revegetation, reclamation of water bodies, reclamation of aquatic or wildlife habitat, and other elements of the approved Reclamation Plan shall be based upon cost estimates that include:
         (A)   Labor.
         (B)   Equipment.
         (C)   Materials.
         (D)   Mobilization of equipment.
         (E)   Administration.
         (F)   Reasonable profit by a commercial operator other than the permitee.
      (5)   A contingency factor of ten percent shall be added to the cost of financial assurances to cover the County’s reasonable expenses for the administrative and legal fees required to foreclose on the financial assurance instrument.
      (6)   In projecting the costs of financial assurances, it shall be assumed without prejudice or insinuation that the surface mining operation could be abandoned by the operator and, consequently, the County or State Department of Conservation may need to contract with a third party commercial company for reclamation of the site.
   (e)   Time Period That Security Required to Remain in Effect.  The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period specified in the Reclamation Plan for the purpose of monitoring until reclamation is completed (including any maintenance required).
   (f)   Annual Adjustment in Amount of Security.  The amount of financial assurances required of a surface mining operation for any one year shall be adjusted annually to account for new lands disturbed by surface mining operations, inflation, and giving credit for reclamation of lands accomplished in compliance with the approved Reclamation Plan.  The financial assurances shall include estimates to cover reclamation for existing conditions and anticipated activities during the upcoming year, excepting that the permittee may not claim credit for reclamation scheduled for completion during the coming year.  The annual SMARA inspection by the County shall, in most cases, be used to validate the submitted estimate.
   (g)   Submittal of Revised Security Figures.  Revisions to financial assurances shall be submitted to the Director each year before the anniversary date for approval of the financial assurances.  The financial assurance shall cover the cost of existing disturbance and anticipated activities for the next calendar year, including any required interim reclamation.  If revisions to the financial assurances are not required, the operator shall explain, in writing, why revisions are not required.
(Ord. 4011, passed - -2007)