Where the earth you remove goes, the Restoration Plan and the bonds that hold up the permit

They are Rules 3.5.5 to 3.5.8 of Chapter 3.5 of Joint Regulation No. 9473, on the extraction, excavation, removal and dredging of the earth’s crust components. They cover four things that go together in practice: the haulage and disposal of the material with the receiving land’s requirements, the restoration of the altered area, the orders the DRNA may issue when something goes wrong, and the policies and bonds the permit holder must keep in force for as long as the activity lasts, including the restoration work. The permit types, the evaluation criteria and the exemptions are in Rules 3.5.1 to 3.5.4, and the explosives rules in 3.5.13; each block has its own guide on this site.

These obligations fall on the permit holder: it is their responsibility to obtain and keep in force, for the activity’s duration including the necessary restoration work, the public liability policies and bonds required, and it is their responsibility to implement the Restoration Plan approved by OGPe. The receiving land’s obligations also fall on the owner of the plot receiving the material, who must hold the corresponding permits and accept the material in writing. And the power to issue restoration and do-and-do-not orders belongs to the DRNA, both where a permit’s conditions are not met and where work was done with no permit at all.

• Carrying out every haulage and deposit of material taking the necessary precautions and complying with the applicable legal or regulatory provisions.Verified against the official source
• That the deposited material cause no damage to public-domain property, neighbouring communities or any natural resource, and that it not alter natural drainage or storm works, obstruct the free flow of waters or affect abutting properties.Verified against the official source
• That the receiving land hold the corresponding permits.Verified against the official source
• Implementing the Restoration Plan approved by OGPe, which must explain the measures to be taken for the impairment of the physical and biotic environment of the area subject to the proposed activity.Verified against the official source
• Obtaining and keeping in force, for the activity’s duration including the necessary restoration work, the public liability policies and bonds required, including as additional insureds the Government of Puerto Rico, OGPe and the DRNA.Verified against the official source
• Notifying every cancellation of a policy or bond to OGPe and the DRNA not less than thirty calendar days before the cancellation date.Verified against the official source

• If the receiving land is another project: a sworn declaration from the plot’s owner accepting the material, and the Incidental Operational Single Permit or the General Permit for the other works of the project receiving the material.
• If the receiving land is a landfill: an acceptance letter from the landfill.
• If the receiving land is private property: a fill-deposit permit and the owner’s authorisation accepting the material.
• The Restoration Plan approved by OGPe, whose implementation is the permit holder’s responsibility.
• The public liability policies and bonds in force, with the Government of Puerto Rico, OGPe and the DRNA included as additional insureds.

1. 1

   Step 1: The material you remove cannot land just anywhere

   Every haulage and deposit of material must be carried out taking the necessary precautions and complying with the applicable legal or regulatory provisions. And there is a substantive limit: the deposited material may not cause damage to public-domain property, neighbouring communities or any natural resource; nor may it alter natural drainage or storm works, obstruct the free flow of waters or affect abutting properties. That last point is what turns a badly placed deposit into a flood in the neighbour’s yard.

2. 2

   Step 2: What a receiving land is

   Receiving lands are the plot or place located outside the project’s perimeter that will receive the earth-crust components. The rule is short and hard: receiving lands must hold the corresponding permits. It is not enough that an acquaintance lets you fill a hole on their land.

3. 3

   Step 3: The three papers, depending on where the material goes

   If the material goes to another project: a sworn declaration from the plot’s owner accepting it and the Incidental Operational Single Permit or the General Permit for that project’s other works. If it goes to a landfill: an acceptance letter from the landfill. And if it goes to private property: a fill-deposit permit and the owner’s authorisation accepting the material. Three destinations, three sets of papers, and none of them is optional.

4. 4

   Step 4: The Restoration Plan and who answers for it

   The permit holder is responsible for implementing the Restoration Plan approved by OGPe. The Plan must explain the measures that will be taken for the impairment of the physical and biotic environment of the area subject to the proposed activity. A note of fidelity to the document: the rule prints "preparar el menoscabo" where the parallel phrase in the chapter’s formal-permit requirements prints "reparar el menoscabo". We reproduce both as they stand and silently correct neither.

5. 5

   Step 5: The DRNA’s orders when something goes wrong

   The DRNA may issue Restoration Orders and Do-and-Do-Not Orders, or any other remedy within the powers granted by its Organic Act, in two cases: where a permit’s conditions have not been met, and where the extraction, removal, excavation and dredging work was carried out without a permit. The Restoration Order specifies the procedures necessary to carry it out so as to restore the altered area, and includes the time period needed for the restoration and the provisions necessary for compliance. And a bond may be demanded to guarantee the restoration work.

6. 6

   Step 6: Two hundred thousand in policy, one million with explosives

   Public liability policies must contemplate a separate amount for personal and for property damage, for not less than two hundred thousand dollars. If the extraction includes the use of explosives, the public liability policy must be for not less than one million dollars. Moreover, OGPe may require policies and bonds for greater amounts than those stated where it deems that health, environmental protection, technical aspects and the public interest so warrant.

7. 7

   Step 7: The three bonds and how they are calculated

   Bonds may be required to guarantee three things. First, the restoration work — the performance bond: its amount is determined on the total estimated cost the DRNA would incur had it to carry out the restoration, calculated under Article 5(b) of Act No. 132 of 25 June 1968. Second, the payment of export royalties: the amount is calculated on ten per cent of the cost of the quantity of material authorised to be exported. And third, the payment of royalties for activities on public-domain property: the amount is calculated on three per cent of the quantity of Reserve requested at one dollar fifty cents.

8. 8

   Step 8: If you fail: executing the bond and the thirty days

   Where the permit holder fails to comply with the restoration work of the area authorised to be extracted, removed, excavated and dredged, or fails to comply with the royalty payments, the Secretary of the DRNA may execute the bond issued in their name to cover the costs of restoring the altered area and its surroundings. Before executing the bond, the DRNA sends a communication stating its intention to the permit holder and provides a term of thirty calendar days to show cause why it should not be executed. That prior notice is the only window there is: after the thirty days the bond answers.

9. 9

   Step 9: A lapsed bond brings the permit down

   The rule says it in a line worth underlining: the bond’s lapse is cause for the permit’s immediate revocation. For that same reason, every cancellation of a policy or bond must be notified to OGPe and the DRNA not less than thirty calendar days before the cancellation date. And policies and bonds must be kept in force for the activity’s duration, including the necessary restoration work: they do not end when the extraction ends, but when the restoration ends.

The Restoration Plan is approved by OGPe, and everything about the permit is filed with it through the SUI. Policies and bonds are arranged with the insurer or surety, but including as additional insureds the Government of Puerto Rico, OGPe and the DRNA, and their cancellation is notified to both agencies. Restoration and do-and-do-not orders are issued by the DRNA, and it is the Secretary of the DRNA who may execute the bond.

• Taking the material to land that does not hold the corresponding permits.
• Depositing on private property without a fill-deposit permit or the owner’s written authorisation accepting the material.
• Letting the bond lapse: it is cause for the permit’s immediate revocation.
• Cancelling a policy or bond without notifying OGPe and the DRNA thirty calendar days in advance.
• Letting policies expire when the extraction ends, when they must also cover the restoration work.
• Not including the Government of Puerto Rico, OGPe and the DRNA as additional insureds.
• Using explosives with a two-hundred-thousand-dollar public liability policy when the minimum with explosives is one million.
• Depositing material so that it alters natural drainage, obstructs the free flow of waters or affects abutting properties.
• Letting the thirty calendar days to show cause pass before the DRNA executes the bond.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov

• Department of Natural and Environmental Resources

  drna

  www.drna.pr.gov