No. 27609 (New Rule): R850-23. Sand, Gravel and Cinders Permits

DAR File No.: 27609
Filed: 12/23/2004, 03:00
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this new rule is to group provisions governing sand, gravel, and cinders resources with the provisions of the mineral and material resources, thereby allowing Rule R850-130 to be repealed. This rule is commodity-specific and gives better clarity to the processes governing these commodities. (DAR NOTE: The proposed repeal of Rule R850-130 is under DAR No. 27602 in this issue.)

 

Summary of the rule or change:

The processes described in this rule are commodity-specific and are written with more clarity so that they can be better understood by the community that is subject to them. This new rule is a re-enactment of the provisions found in Rule R850-130, which is being repealed.

 

State statutory or constitutional authorization for this rule:

Subsection 53C-1-302(1)(a)(ii), 53C-2-201(1)(a), and 53C-4-101(1)

 

Anticipated cost or savings to:

the state budget:

Other than the minimal shared cost of publishing a new edition of the agency's rules, there are no other anticipated costs or savings to the State.

 

local governments:

There are no anticipated costs or savings to local government as a result of this new rule. All processes related to this rule were included in Rule R850-130 and they follow the current practices of the agency.

 

other persons:

There are no anticipated costs or savings to other persons as a result of the implementation of this new rule. All processes were previously included in Rule R850-130, and they follow current practices of the agency.

 

Compliance costs for affected persons:

There are no anticipated costs or savings for compliance with this rule. All of the processes follow current practices of the agency and were included in Rule R850-130 which is being repealed.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule simply combines material from two other rules which are being repealed. Consequently, there is no anticipated impact on business.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

School and Institutional Trust Lands
Administration
675 E 500 S
SALT LAKE CITY UT 84102-2818

 

Direct questions regarding this rule to:

Thomas B. Faddies at the above address, by phone at 801-538-5150, by FAX at 801-355-0922, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

02/14/2005

 

This rule may become effective on:

04/01/2005

 

Authorized by:

Kevin S. Carter, Director

 

 

RULE TEXT

R850. School and Institutional Trust Lands, Administration.

R850-23. Sand, Gravel and Cinders Permits.

R850-23-100. Authorities.

This rule implements Sections 6, 8, 10, and 12 of the Utah Enabling Act, Articles X and XX of the Utah Constitution, Subsections 53C-1-302(1)(a)(ii) and 53C-4-101(1) which authorize the Director of the School and Institutional Trust Lands Administration to prescribe agency objectives, standards and conditions for the issuance of sand, gravel and cinders permits and for conveyances for common varieties of sand, gravel, cinders, and similar materials on trust lands.

 

R850-23-125. Mineral Estate Distinctions.

Common varieties of sand and gravel and volcanic cinder are not considered part of the mineral estate on trust lands in Utah. These commodities may only be obtained through a materials permit approved by the director and in accordance with these rules.

 

R850-23-150. Planning.

Pursuant to Subsection 53C-2-201(1)(a), the agency shall also undertake to complete the following planning obligations, in addition to the rule-based analysis and approval processes that are prescribed by this rule:

1. to the extent required by the Memorandum of Understanding between the State Planning Coordinator and the School and Institutional Trust Lands Administration, submit the proposal for review by the Resource Development Coordinating Committee (RDCC) if the proposed action may have a significant impact upon natural or cultural resources of the state;

2. evaluation of and response to comments received through the RDCC process; and

3. evaluation of and response to any comments received through the solicitation process conducted pursuant to R850-23-500(2).

 

R850-23-175. Definitions.

1. Permit: a sand, gravel or cinders permit.

2. Permittee: a person or entity holding a record title interest in a sand, gravel or cinders permit.

 

R850-23-200. Sand, Gravel and Cinders Permits Issued on Agency Lands.

1. The agency may issue permits or may convey profits a prendre or similar interests on all trust lands, and, when the agency deems it consistent with agency land use plans and trust responsibilities.

2. The agency may issue permits when the sale of the permitted materials would be exempt from sales tax under Subsection 59-12-104(2) or 59-12-104(28).

3. The agency may issue profits a prendre in all other instances according to the procedures and provisions of this chapter.

 

R850-23-300. Rentals and Royalties.

1. Rentals.

(a) Rental rates shall be $10 per acre, or fractional part thereof, per annum.

(b) The minimum annual rental on permits shall be determined periodically by the agency pursuant to board policy.

2. Royalty Rates and Provisions.

(a) The agency shall charge full market value for all permitted materials purchased under a sand, gravel or cinders permit. Market value will be determined by the agency through analysis of the local market.

(b) The agency, pursuant to board policy, may annually establish minimum royalty rates for permits based on the type of permitted material being removed.

(c) Royalty payments shall be remitted to the agency on a quarterly basis or on such other basis as may be required by the terms and conditions of the permit and shall be accompanied by an agency approved "Production and Settlement Transmittal Form."

 

R850-23-400. Terms of Sand, Gravel and Cinders Permits.

Permits issued under these rules shall be issued for a term which allows for the most beneficial use of the resource, as specified in the terms and conditions of the permit, but no longer than necessary to accomplish the extraction and removal of the materials subject to the sale, and to accomplish any required reclamation work. In no event shall a permit continue for a period of longer than five years without readjustment in its terms and conditions, by the director, as may be determined to be in the best interest of the trust beneficiaries.

 

R850-23-500. Application Procedures.

1. Application Filing.

(a) Applications for permits may be submitted to any office of the agency during office hours pursuant to R850-3.

(b) The director may approve applications for permits for common varieties of sand, gravel or cinders in accordance with the bid solicitation process described in R850-23-500(2), subject to rule R850-23-1400, Over-the-Counter Sales.

2. Bid Solicitation Processes.

(a) In the absence of any valid permit, or any valid lease for the same commodity upon the same land, the agency may offer for competitive bid permits when exposing the site to the market could reasonably be expected to produce permitted materials sales. A notice of lands available for competitive filing for permits shall be made in a manner to reasonably solicit competitive bid applications. Notices of competitive filing shall contain the procedure by which the agency shall award the permit.

(b) Upon acceptance of any permit application for common varieties of sand, gravel, or cinders the agency shall solicit competing applications through publication at least once a week for two consecutive weeks in one or more newspapers of general circulation in the county in which the permit is offered. At least 30 days prior to bid opening, certified notification will be sent to permittees of record, adjacent permittees/lessees, and adjacent landowners. Notices will also be posted in the local governmental administrative building or the county courthouse. Notification and advertising shall include the legal description of the parcel and any other information which may create interest in the parcel. The successful applicant shall bear the cost of the advertising.

(c) The agency shall allow all applicants at least 20 days from the date of mailing of notice, as evidenced by the certified mail posting receipt (Postal Service form 3800), within which to submit a sealed bid containing their proposal for the subject parcel. Competing bids shall be evaluated using the criteria found in R850-30-500(2)(g), R850-80-500, and R850-90-200, for special use leases, sales, or exchanges, respectively.

(d) If no competing applications involving sale, lease or exchanges are received by the deadline published pursuant to R850-23-500(2)(b), then the agency shall award the permit based on the following criteria:

i) amount of bonus bid;

ii) amount and rate of proposed materials extraction; and

iii) other criteria and assurances of performances as the agency shall require by permit or advertise prior to bidding.

 

R850-23-600. Permit Execution.

The permit shall be executed by the applicant and returned to the agency within 30 days from the date of applicant's receipt of the permit. Failure to execute and return the documents to the agency within the 30-day period may result in cancellation of the permit, the forfeiture of any fees, and the discharge of any obligation of the agency arising from the approval of the application.

 

R850-23-700. Sand, Gravel and Cinders Permit Provisions.

Each permit shall contain provisions necessary to ensure responsible surface management including, but not limited to, the following provisions: The rights of the permittee; rights reserved to the permitter; the term of the permit; payment obligations; transfers of permit interest by permittee; permittee's responsibility for reclamation; terms and conditions of permit forfeiture; and protection of the agency from liability from all actions of the permittee.

 

R850-23-800. Bonding Provisions.

Prior to the issuance of a permit, or for good cause shown at any time during the term of the permit, and upon 30 days written notice, the applicant or permittee, as the case may be, may be required to post with the agency a bond in the form and amount as may be determined by the agency to assure compliance with all terms and conditions of the permit.

1. All bonds posted on permits may be used for payment of all monies, rentals, and royalties due to the agency, also for costs of reclamation and for compliance with all other terms and conditions of the permit, and rules pertaining to the permit. The bond shall be in effect even if the permittee has conveyed all or part of the permit interest to a sub-lessee, assignee, or subsequent operator until such time as the permittee fully satisfies the permit obligations, or until the bond is replaced with a new bond posted by the sub-lessee or assignee.

2. Bonds may be increased in reasonable amounts, at any time as the agency may decide, provided the agency first gives permittee 30 days written notice stating the increase and the reason(s) for such increase.

3. Bonds may be accepted in any of the following forms at the discretion of the

agency:

(a) Surety bond with an approved corporate surety registered in Utah.

(b) Cash deposit. However, the agency will not be responsible for any investment returns on cash deposits.

(c) Certificates of deposit in the name of "School and Institutional Trust Lands Administration and permittee, c/o permittee's address", with an approved state or federally insured banking institution registered in Utah. Such certificate of deposit must have a maturity date no greater than 12 months, be automatically renewable, and be deposited with the agency; the permittee will be entitled to and receive the interest payments. All certificates of deposit must be endorsed by the permittee prior to acceptance by the director.

(d) Other forms of surety as may be acceptable to the agency.

 

R850-23-900. Insurance Requirements.

Prior to the issuance of a permit for sand, gravel and cinders, the applicant may be required to obtain insurance of a type and in an amount acceptable to the agency. Proof of insurance shall be in the form of a certificate of insurance containing sufficient information to satisfy the agency that insurance provisions of the permit have been complied with.

1. Such insurance, if required, shall be placed with an insurer with a financial rating assigned by the Best Insurance Guide of A:X or higher, unless this requirement is waived in writing by the agency.

2. The agency shall retain the right to review the coverage, form, and amount of the insurance required at any time and to require the permittee to obtain insurance sufficient in coverage, form, and amount to provide adequate protection upon 30 days written notice.

 

R850-23-1000. Plans of Operation.

1. Prior to the commencement of any activity authorized by a permit the permittee shall submit, for the director's approval, a plan of operations which shall include the following:

(a) A map or plat showing:

(i) the location and sequence of areas from which material is to be excavated;

(ii) the location of any processing or stationary equipment or improvements which will be placed on the premises;

(iii) transportation and access routes across the premises and adjacent properties;

(iv) the location of any fuel storage tanks; and

(v) the location of stockpile areas.

(b) Elevation drawings of the premises before and after the excavation of materials.

(c) Reclamation plans acceptable to the director, upon review by the School and Institutional Trust Lands Administration.

(d) Copy of any required notification of the proposed operation to the Utah Division of Oil, Gas and Mining and all other government agencies.

(e) Copy of notification of the proposed operation to the owner of the surface estate, owners of the mineral estate, and to all other parties having any valid existing lease or permit upon the same lands.

2. Within 60 days of receiving such plan of operation, the agency shall review the plan and request any additional information necessary to complete the review. The permittee shall not commence any operations which may disturb the lands until the agency has reviewed the plan of operation submitted by the permittee and has given its written approval to the permittee for the commencement of such operations.

3. Each permittee holding a current permit shall within 30 days of each annual anniversary date of the issuance of the permit, submit to the agency a report of all activities under the permit for the previous year. Such report shall include a description of new excavations and surface disturbances, the type and quantity of the materials produced and sold or stockpiled, a description of mined land reclamation work completed or in progress, and any other information requested by the agency to reasonably monitor the permittee's operations under the permit.

 

R850-23-1050. Conduct of Operations and Compliance with Rules.

All exploration, mining or other operations performed under any permit, shall be performed in a good and workman like manner to ensure the conservation of the materials deposits, all other deposits of common and uncommon varieties of mineral resources, and other natural resources upon the lands. Each permittee of a permit shall at all times take whatever measures are necessary to be in compliance with all applicable rules of any federal or state agency pursuant to the activities and operations of the permittee or operator upon the lands.

 

R850-23-1100. Existing Lease and Permit Conversion.

Existing sand and gravel leases or permits issued prior to the effective date of these rules and in good standing on such date shall continue for the term specified in the lease or permit and shall be subject to the conditions and provisions contained in the lease or permit; provided, however, the agency may allow such lessees/permittees to convert such existing leases or permits to the new permit, providing such conversion will not conflict with the valid existing rights of any other lessee or permittee or owner upon the same lands.

 

R850-23-1200. Sand, Gravel and Cinders Permit Assignments.

A permit may be assigned to any person, firm, association, or corporation qualified under R850-3-200, provided that the assignments are approved by the agency; and no assignment is effective until written approval is given. Any assignment made without such approval is void.

1. An assignment shall take effect the day of the approval of the assignment. On the effective date of any assignment, the assignee is bound by the terms of the permit to the same extent as if such assignee were the original grantee, any conditions in the assignment to the contrary notwithstanding.

2. An assignment must be a sufficient legal instrument, properly executed and acknowledged, and should clearly set forth the easement number, and land involved, and the name and address of the assignee.

3. An assignment shall be executed according to agency procedures.

 

R850-23-1300. Reclamation Requirements.

Following the completion of excavations, the agency shall require reclamation measures to stabilize and restore natural surface conditions. Reclamation measures will generally consist of, but not necessarily be limited to, sloping and stabilization of highwalls, contouring of slopes at a ratio not greater than three feet horizontal for each one foot vertical or as otherwise specified by the agency, stabilization of access roads or the closure of access roads as determined by the agency, replacement of natural topsoils, revegetation using a seed mixture and rate of application as may be specified by the agency, removal of all trash and debris, and the prompt removal of all equipment, buildings, and structures owned by the permittee or permittee's agents.

 

R850-23-1400. Over-the-Counter Sales.

Permits for common varieties of sand, gravel, or cinders may be issued on an "over-the-counter" basis in areas which have been designated by the director as open for such sales.

 

R850-23-1500. Termination of Sand, Gravel and Cinders Permit.

Any permit issued by the agency on trust land may be terminated in whole or in part for failure to comply with any term or condition of the permit or applicable laws or rules. Upon determination by the director that a permit is subject to termination pursuant to the terms of the permit or applicable laws or rules, the director shall issue an appropriate instrument terminating the permit.

 

R850-23-1600. Collection of Sales Tax.

The agency shall require all permittees not exempt pursuant to Section 59-12-104 to remit sales taxes with the "Production and Settlement Transmittal Form" submitted pursuant to R850-23-300(2)(c).

 

KEY: sand, gravel, cinders, permit provisions

April 1, 2005

53C-1-302(1)(a)(ii)

53C-2-201(1)(a)

53C-4-101(1)