_GENERAL DOCUMENTS - C1981017 (181)

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Rule 3 . 04 sets forth when the Board must forfeit an opera- tor's performance bond, and states that the Board may withhold declaration of bond forfeiture if the permittee agrees to a com- pliance schedule which shall require completion of reclamation within a time specified by the Board. The rule provides, howev- er, that the Board shall not agree to a compliance schedule if the permittee has become insolvent, failed in business, been ad- judicated a bankrupt, filed a petition in bankruptcy or for a receiver, or had a receiver appointed by any court. The rule thus states that if the permittee is already bank- rupt, the Board cannot delay forfeiture of the bond by agreeing with the permittee to a compliance schedule. In the present case, at the time the Board entered the reclamation schedule, May 1991, Resources was not bankrupt or insolvent. Then, in January 1992 , the Board's order indicated that the May 1991 order was in full force and effect. Again, at that time, Resources was not bankrupt. It was not until a month after the Board reiterated that Resources must comply with the reclamation schedule that Resources filed for bankruptcy. Thus, at the time the compliance order was entered, Resources was not bankrupt. Accordingly, the compliance schedule was properly entered by the Board and remains in full force and effect. Contrary to the defendants' argument, there is nothing in the rule that invalidates a reclamation schedule when after such schedule is entered, the permittee files for bankruptcy. More- over, even assuming arguendo that the rule does retroactively invalidate such a compliance schedule, it would only be invali- dated as to Resources, and not to the defendants since the defen- dants are not bankrupt. The defendants further argue that the Board has not com- plied with the proper procedure in the event that a reclamation permit has been revoked, and that this disallows the present ac- tion. The defendants' argument is without merit. Rule 3 . 04 . 2 states that if the Board forfeits a bond, the Division shall proceed in an action to collect on the bond. Any proceeds are to held in an account and used by the Division for reclamation. The Division has complied with this rule by filing a proof of claim in Resources' bankruptcy proceeding based on the performance bond given by Resources to ensure reclamation. Even assuming arguendo that the Division has somehow not complied with this provision, the defendants cite no law for their assertion that in such a situation the court is limited to providing "such relief as may be appropriate. " Nothing in the -6-