Current through Register Vol. 48, No. 38, September 20, 2024
As required by Section
721.104(a)(24)(F)(vi),
an owner or operator of a reclamation facility or an intermediate facility must
have financial assurance as a condition of the exclusion. The owner or operator
must choose from among the options specified in subsections (a) through
(e).
a) Trust Fund
1) An owner or operator may satisfy the
requirements of this Section by establishing a trust fund that conforms to the
requirements of this subsection (a) and submitting an originally signed
duplicate of the trust agreement to the Agency. The trustee must be an entity
that has the authority to act as a trustee and whose trust operations are
regulated and examined by a federal or state agency.
2) The wording of the trust agreement must be
identical to the wording specified by the Agency pursuant to Section
721.251,
and the trust agreement must be accompanied by a formal certification of
acknowledgment as specified by the Agency pursuant to Section 721.251. Schedule
A of the trust agreement must be updated within 60 days after any change in the
amount of the current cost estimate covered by the agreement.
3) The trust fund must be funded for the full
amount of the current cost estimate before it may be relied upon to satisfy the
requirements of this Section.
4)
Whenever the current cost estimate changes, the owner or operator must compare
the new cost estimate with the trustee's most recent annual valuation of the
trust fund. Within 60 days after the change in the cost estimate, if the value
of the fund is less than the amount of the new cost estimate, the owner or
operator must either deposit an amount into the fund so that its value after
this deposit at least equals the amount of the current cost estimate, or the
owner or operator must obtain other financial assurance that satisfies the
requirements of this Section to cover the difference.
5) If the value of the trust fund is greater
than the total amount of the current cost estimate, the owner or operator may
submit a written request to the Agency for release of the amount in excess of
the current cost estimate.
6) If an
owner or operator substitutes other financial assurance that satisfies the
requirements of this Section for all or part of the trust fund, it may submit a
written request to the Agency for release of the amount in excess of the
current cost estimate covered by the trust fund.
7) Within 60 days after receiving a request
from the owner or operator for a release of funds, as specified in subsection
(a)(5) or (a)(6), the Agency must instruct the trustee to release to the owner
or operator such funds as the Agency specifies in writing. If the owner or
operator begins final closure pursuant to Subpart G of 35 Ill. Adm. Code 724 or
725, it may request reimbursements for partial or final closure expenditures by
submitting itemized bills to the Agency. The owner or operator may request
reimbursements for partial closure only if sufficient funds are remaining in
the trust fund to cover the maximum costs of closing the facility over its
remaining operating life. No later than 60 days after receiving bills for
partial or final closure activities, if the Agency determines that the partial
or final closure expenditures are in accordance with the approved closure plan,
or otherwise justified, the Agency must instruct the trustee to make
reimbursements in those amounts as the Agency specifies in writing. If the
Agency has reason to believe that the maximum cost of closure over the
remaining life of the facility will be significantly greater than the value of
the trust fund, the Agency may withhold reimbursements of such amounts as the
Agency deems prudent until the Agency determines, in accordance with 35 Ill.
Adm. Code
725.243(i),
that the owner or operator is no longer required to maintain financial
assurance for final closure of the facility. If the Agency does not instruct
the trustee to make such reimbursements, the Agency must provide to the owner
or operator a detailed written statement of reasons.
8) The Agency must agree to termination of
the trust fund when either of the following has occurred:
A) The Agency determines that the owner or
operator has substituted alternative financial assurance that satisfies the
requirements of this Section; or
B)
The Agency releases the owner or operator from the requirements of this Section
in accordance with subsection (i).
b) Surety Bond Guaranteeing Payment into a
Trust Fund
1) An owner or operator may satisfy
the requirements of this Section by obtaining a surety bond that conforms to
the requirements of this subsection (b) and submitting the bond to the Agency.
The surety company issuing the bond must, at a minimum, be among those listed
as acceptable sureties on federal bonds in Circular 570 of the U.S. Department
of the Treasury.
BOARD NOTE: The U.S. Department of the Treasury updates
Circular 570, "Companies Holding Certificates of Authority as Acceptable
Sureties on Federal Bonds and as Acceptable Reinsuring Companies", on an annual
basis pursuant to
31 CFR
223.16. Circular 570 is available on the
Internet from the following website:
http://www.fms.treas.gov/c570/.
2) The wording of the surety bond must be
identical to the wording specified by the Agency pursuant to Section
721.251.
3) The owner or operator
who uses a surety bond to satisfy the requirements of this Section must also
establish a standby trust fund. Under the terms of the bond, all payments made
thereunder will be deposited by the surety directly into the standby trust fund
in accordance with instructions from the Agency. This standby trust fund must
meet the requirements specified in subsection (a), except that the following
also apply:
A) The owner or operator must
submit an originally signed duplicate of the trust agreement to the Agency with
the surety bond; and
B) Until the
standby trust fund is funded pursuant to the requirements of this Section, the
following are not required:
i) Payments into
the trust fund, as specified in subsection (a);
ii) Updating of Schedule A of the trust
agreement to show current cost estimates;
iii) Annual valuations, as required by the
trust agreement; and
iv) Notices of
nonpayment, as required by the trust agreement.
4) The bond must guarantee that the owner or
operator will undertake one of the following actions:
A) That the owner or operator will fund the
standby trust fund in an amount equal to the penal sum of the bond before loss
of the exclusion pursuant to Section
721.104(a)(24);
B) That the owner or operator will fund the
standby trust fund in an amount equal to the penal sum within 15 days after an
administrative order to begin closure issued by the Agency becomes final, or
within 15 days after an order to begin closure is issued by the Board or a
court of competent jurisdiction; or
C) Within 90 days after receipt by both the
owner or operator and the Agency of a notice of cancellation of the bond from
the surety, that the owner or operator will provide alternate financial
assurance that satisfies the requirements of this Section and obtain the
Agency's written approval of the assurance provided.
5) Under the terms of the bond, the surety
must become liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond.
6) The penal sum of the bond must be in an
amount at least equal to the current cost estimate, except as provided in
subsection (f).
7) Whenever the
current cost estimate increases to an amount greater than the penal sum, the
owner or operator, within 60 days after the increase, must either cause the
penal sum to be increased to an amount at least equal to the current cost
estimate and submit evidence of such increase to the Agency, or obtain other
financial assurance that satisfies the requirements of this Section to cover
the increase. Whenever the current cost estimate decreases, the penal sum may
be reduced to the amount of the current cost estimate following written
approval by the Agency.
8) Under
the terms of the bond, the surety may cancel the bond by sending notice of
cancellation by certified mail to the owner or operator and to the Agency.
Cancellation may not occur, however, during the 120 days beginning on the date
of receipt of the notice of cancellation by both the owner or operator and the
Agency, as evidenced by the return receipts.
9) The owner or operator may cancel the bond
if the Agency has given prior written consent based on the Agency's receipt of
evidence of alternate financial assurance that satisfies the requirements of
this Section.
c) Letter
of Credit
1) An owner or operator may satisfy
the requirements of this Section by obtaining an irrevocable standby letter of
credit that conforms to the requirements of this subsection (c) and submitting
the letter to the Agency. The issuing institution must be an entity that has
the authority to issue letters of credit and whose letter-of-credit operations
are regulated and examined by a federal or state agency.
2) The wording of the letter of credit must
be identical to the wording specified by the Agency pursuant to Section
721.251.
3) An owner or operator
who uses a letter of credit to satisfy the requirements of this Section must
also establish a standby trust fund. Under the terms of the letter of credit,
all amounts paid pursuant to a draft by the Agency will be deposited by the
issuing institution directly into the standby trust fund in accordance with
instructions from the Agency. This standby trust fund must meet the
requirements of the trust fund specified in subsection (a), except that the
following also apply:
A) The owner or
operator must submit an originally signed duplicate of the trust agreement to
the Agency with the letter of credit; and
B) Unless the standby trust fund is funded
pursuant to the requirements of this Section, the following are not required:
i) Payments into the trust fund, as specified
in subsection (a);
ii) Updating of
Schedule A of the trust agreement to show current cost estimates;
iii) Annual valuations, as required by the
trust agreement; and
iv) Notices of
nonpayment, as required by the trust agreement.
4) The letter of credit must be accompanied
by a letter from the owner or operator that refers to the letter of credit by
number, issuing institution, and date, and which provides the following
information: The USEPA identification number (if any issued), name, and address
of the facility, and the amount of funds assured for the facility by the letter
of credit.
5) The letter of credit
must be irrevocable, and the letter must be issued for a period of at least one
year. The letter of credit must provide that the expiration date will be
automatically extended for a period of at least one year unless, at least 120
days before the current expiration date, the issuing institution notifies both
the owner or operator and the Agency by certified mail of a decision not to
extend the expiration date. Under the terms of the letter of credit, the 120
days will begin on the date when both the owner or operator and the Agency have
received the notice, as evidenced by the return receipts.
6) The letter of credit must be issued in an
amount at least equal to the current cost estimate, except as provided in
subsection (f).
7) Whenever the
current cost estimate increases to an amount greater than the amount of the
credit, within 60 days after the increase, the owner or operator must either
cause the amount of the credit to be increased, so that it at least equals the
current cost estimate, and submit evidence of such increase to the Agency, or
it must obtain other financial assurance that satisfies the requirements of
this Section to cover the increase. Whenever the current cost estimate
decreases, the amount of the credit may be reduced to the amount of the current
cost estimate following written approval by the Agency.
8) Following a determination by the Agency
that the hazardous secondary materials do not meet the conditions of the
exclusion set forth in Section
721.104(a)(24),
the Agency may draw on the letter of credit.
9) If the owner or operator does not
establish alternative financial assurance that satisfies the requirements of
this Section and obtain written approval of such alternate assurance from the
Agency within 90 days after receipt by both the owner or operator and the
Agency of a notice from the issuing institution that it has decided not to
extend the letter of credit beyond the current expiration date, the Agency may
draw on the letter of credit. The Agency may delay the drawing if the issuing
institution grants an extension of the term of the credit. During the last 30
days of any such extension, the Agency may draw on the letter of credit if the
owner or operator has failed to provide alternative financial assurance that
satisfies the requirements of this Section and obtain written approval of such
assurance from the Agency.
10) The
Agency must return the letter of credit to the issuing institution for
termination when either of the following occurs:
A) The owner or operator substitutes
alternative financial assurance that satisfies the requirements of this
Section; or
B) The Agency releases
the owner or operator from the requirements of this Section in accordance with
subsection (i).
d) Insurance
1) An owner or operator may satisfy the
requirements of this Section by obtaining insurance that conforms to the
requirements of this subsection (d) and submitting a certificate of such
insurance to the Agency. At a minimum, the insurer must be licensed to transact
the business of insurance, or eligible to provide insurance as an excess or
surplus lines insurer, in one or more states.
2) The wording of the certificate of
insurance must be identical to the wording specified by the Agency pursuant to
Section 721.251.
3) The insurance
policy must be issued for a face amount at least equal to the current cost
estimate, except as provided in subsection (f). The term "face amount" means
the total amount the insurer is obligated to pay under the policy. Actual
payments by the insurer will not change the face amount, although the insurer's
future liability will be lowered by the amount of the payments.
4) The insurance policy must guarantee that
funds will be available whenever needed to pay the cost of removal of all
hazardous secondary materials from the unit, to pay the cost of decontamination
of the unit, and to pay the costs of the performance of activities required
under Subpart G of 35 Ill. Adm. Code 724 or 725, as applicable, for the
facilities covered by the policy. The policy must also guarantee that once
funds are needed, the insurer will be responsible for paying out funds, up to
an amount equal to the face amount of the policy, upon the direction of the
Agency, to such party or parties as the Agency specifies.
5) After beginning partial or final closure
pursuant to 35 Ill. Adm. Code 724 or 725, as applicable, an owner or operator
or any other authorized person may request reimbursements for closure
expenditures by submitting itemized bills to the Agency. The owner or operator
may request reimbursements only if the remaining value of the policy is
sufficient to cover the maximum costs of closing the facility over its
remaining operating life. If the Agency determines that the expenditures are in
accordance with the approved plan or are otherwise justified, the Agency must,
within 60 days after receiving bills for closure activities, instruct the
insurer in writing to make reimbursements in such amounts as the Agency
specifies. If the Agency has reason to believe that the maximum cost over the
remaining life of the facility will be significantly greater than the face
amount of the policy, the Agency may withhold reimbursement of such amounts as
the Agency deems prudent until the Agency determines, in accordance with
subsection (h), that the owner or operator is no longer required to maintain
financial assurance for the particular facility. If the Agency does not
instruct the insurer to make such reimbursements, the Agency must provide to
the owner or operator a detailed written statement of reasons.
BOARD NOTE: The owner or operator may appeal any Agency
determination made pursuant to this subsection (d)(5), as provided by Section
40 of the Act.
6) The owner
or operator must maintain the policy in full force and effect until the Agency
consents to termination of the policy by the owner or operator, as specified in
subsection (d)(10). Failure to pay the premium, without substitution of
alternate financial assurance as specified in this Section, will constitute a
significant violation of these regulations warranting such remedy as is deemed
necessary pursuant to Sections 31, 39, and 40 of the Act. Such a violation will
be deemed to begin upon receipt by the Agency of a notice of future
cancellation, termination, or failure to renew the policy due to nonpayment of
the premium, rather than upon the date of policy expiration.
7) Each policy must contain a provision
allowing assignment of the policy to a successor owner or operator. Such
assignment may be conditioned on consent of the insurer, so long as the policy
provides that the insurer may not unreasonably refuse such consent.
8) The policy must provide that the insurer
may not cancel, terminate, or fail to renew the policy, except for failure to
pay the premium. The automatic renewal of the policy must, at a minimum,
provide the insured with the option of renewal at the face amount of the
expiring policy. If the owner or operator fails to pay the premium, the insurer
may elect to cancel, terminate, or fail to renew the policy by sending notice
by certified mail to the owner or operator and the Agency. Cancellation,
termination, or failure to renew may not occur, however, during the 120 days
that begin on the date that both the Agency and the owner or operator have
received the notice, as evidenced by the return receipts. Cancellation,
termination, or failure to renew the policy may not occur, and the policy will
remain in full force and effect, in the event that on or before the expiration
date, one of the following events occurs:
A)
The Agency deems the facility abandoned;
B) Conditional exclusion or interim status is
lost, terminated, or revoked;
C)
Closure is ordered by the Board or a court of competent jurisdiction;
D) The owner or operator is named as debtor
in a voluntary or involuntary proceeding under Title 11 of the U.S. Code
(Bankruptcy); or
E) The premium due
has been paid.
9)
Whenever the owner or operator learns that the current cost estimate has
increased to an amount greater than the face amount of the policy, the owner or
operator must, within 60 days after learning of the increase, either cause the
face amount to be increased to an amount at least equal to the current cost
estimate and submit evidence of such increase to the Agency, or the owner or
operator must obtain other financial assurance that satisfies the requirements
of this Section to cover the increase. Whenever the current cost estimate
decreases, the face amount may be reduced to the amount of the current cost
estimate after the owner or operator has obtained the written approval of the
Agency.
10) The Agency must give
written consent that allows the owner or operator to terminate the insurance
policy when either of the following events occurs:
A) The Agency has determined that the owner
or operator has substituted alternative financial assurance that satisfies the
requirements of this Section; or
B)
The Agency has released the owner or operator from the requirements of this
Section pursuant to subsection (i).
e) Financial Test and Corporate Guarantee
1) An owner or operator may satisfy the
requirements of this Section by demonstrating that the owner or operator passes
one of the financial tests specified in this subsection (e). To pass a
financial test, the owner or operator must meet the criteria of either
subsection (e)(1)(A) or (e)(1)(B):
A) Test 1.
The owner or operator must have each of the following:
i) Two of the following three ratios: A ratio
of total liabilities to net worth less than 2.0; a ratio of the sum of net
income plus depreciation, depletion, and amortization to total liabilities
greater than 0.1; and a ratio of current assets to current liabilities greater
than
1.5;
ii) Net working capital and tangible net
worth each at least six times the sum of the current cost estimates and the
current plugging and abandonment cost estimates;
iii) Tangible net worth of at least $10
million; and
iv) Assets located in
the United States amounting to at least 90 percent of total assets or at least
six times the sum of the current cost estimates and the current plugging and
abandonment cost estimates.
B) Test 2. The owner or operator must have
each of the following:
i) A current rating for
its most recent bond issuance of AAA, AA, A, or BBB, as issued by Standard and
Poor's, or Aaa, Aa, A, or Baa, as issued by Moody's;
ii) Tangible net worth at least six times the
sum of the current cost estimates and the current plugging and abandonment cost
estimates;
iii) Tangible net worth
of at least $10 million; and
iv)
Assets located in the United States amounting to either at least 90 percent of
total assets or at least six times the sum of the current cost estimates and
the current plugging and abandonment cost estimates.
2) Definitions
"Current cost estimates", as used in subsection (e)(1),
refers to the following four cost estimates required in the standard letter
from the owner's or operator's chief financial officer:
The cost estimate for each facility for which the owner or
operator has demonstrated financial assurance through the financial test
specified in subsections (e)(1) through (e)(9);
The cost estimate for each facility for which the owner or
operator has demonstrated financial assurance through the corporate guarantee
specified in subsection (e)(10);
For facilities in a state outside of Illinois, the cost
estimate for each facility for which the owner or operator has demonstrated
financial assurance through the financial test specified in Subpart H of 40 CFR
261 or through a financial test deemed by USEPA as equivalent to that set forth
in Subpart H of 40 CFR 261; and
The cost estimate for each facility for which the owner or
operator has not demonstrated financial assurance to the Agency, USEPA, or a
sister state in which the facility is located by any mechanism that satisfies
the requirements of the applicable of this Subpart H, Subpart H of 40 CFR 261,
or regulations deemed by USEPA as equivalent to Subpart H of 40 CFR 261.
"Current plugging and abandonment cost estimates", as used in
subsection (e)(1), refers to the following four cost estimates required in the
standard form of a letter from the owner's or operator's chief financial
officer (see 35 Ill. Adm. Code
704.240
):
The cost estimate for each facility for which the owner or
operator has demonstrated financial assurance through the financial test
specified in 35 Ill. Adm. Code
704.219(a)
through (i);
The cost estimate for each facility for which the owner or
operator has demonstrated financial assurance through the financial test
specified in 35 Ill. Adm. Code
704.219(j);
For facilities in a state outside of Illinois, the cost
estimate for each facility for which the owner or operator has demonstrated
financial assurance through the financial test specified in Subpart F of 40 CFR
144 or through a financial test deemed by USEPA as equivalent to that set forth
in Subpart F of 40 CFR 144; and
The cost estimate for each facility for which the owner or
operator has not demonstrated financial assurance to the Agency, USEPA, or a
sister state in which the facility is located by any mechanism that satisfies
the requirements of the applicable of Subpart G of 35 Ill. Adm. Code 704,
Subpart F of 40 CFR 144, or regulations deemed by USEPA as equivalent to
Subpart F of 40 CFR 144.
BOARD NOTE: Corresponding
40 CFR
261.143(e)(2) defines
"current cost estimate" as "the cost estimates required to be shown in
paragraphs 1-4 of the letter from the owner's or operator's chief financial
officer (Section 261.151(e))" and "current plugging and abandonment cost
estimates" as "the cost estimates required to be shown in paragraphs 1-4 of the
letter from the owner's or operator's chief financial officer (Section
144.70(f) of this chapter)". The Board has substituted the descriptions of
these estimates, using those set forth by USEPA in
40 CFR
261.151(e) and
144.70(f),
as appropriate. Since the letter of the chief financial officer must include
the cost estimates for any facilities that the owner or operator manages
outside of Illinois, the Board has referred to the corresponding regulations of
those sister states as "regulations deemed by USEPA as equivalent to Subpart F
of 40 CFR 144 and Subpart H of 40 CFR 261 ".
3) To demonstrate that it meets the financial
test set forth in subsection (e)(1), the owner or operator must submit the
following items to the Agency:
A) A letter
signed by the owner's or operator's chief financial officer and worded as
specified by the Agency pursuant to Section
721.251
that is derived from the independently audited, year-end financial statements
for the latest fiscal year, with the amounts of the pertinent environmental
liabilities included in such financial statements;
B) A copy of an independent certified public
accountant's report on examination of the owner's or operator's financial
statements for the latest completed fiscal year; and
C) If the chief financial officer's letter
prepared pursuant to subsection (e)(3)(A) includes financial data which shows
that the owner or operator satisfies the test set forth in subsection (e)(1)(A)
(Test 1), and either the data in the chief financial officer's letter are
different from the data in the audited financial statements required by
subsection (e)(3)(B) of this Section, or the data are different from any other
audited financial statement or data filed with the federal Securities and
Exchange Commission, then the owner or operator must submit a special report
from its independent certified public accountant. The special report must be
based on an agreed-upon procedures engagement, in accordance with professional
auditing standards. The report must describe the procedures used to compare the
data in the chief financial officer's letter (prepared pursuant to subsection
(e)(3)(A)), the findings of the comparison, and the reasons for any
differences.
4) This
subsection (e)(3)(4) corresponds with
40 CFR
261.143(e)(3)(iv), a
provision relating to extension of the deadline for filing the financial
documents required by
40 CFR
261.143(e)(3) until as late
as 90 days after the effective date of the federal rule. Thus, the latest date
for filing the documents was March 29, 2009, which is now past. See
40 CFR
261.143(e)(3) and 73 Fed.
Reg. 64668 (Oct. 30, 2008). This statement maintains structural consistency
with the corresponding federal provision.
5) After the initial submission of items
specified in subsection (e)(3), the owner or operator must send updated
information to the Agency within 90 days after the close of each succeeding
fiscal year. This information must consist of all three items specified in
subsection (e)(3).
6) If the owner
or operator no longer fulfills the requirements of subsection (e)(1), it must
send notice to the Agency of intent to establish alternative financial
assurance that satisfies the requirements of this Section. The owner or
operator must send the notice by certified mail within 90 days after the end of
the fiscal year for which the year-end financial data show that the owner or
operator no longer meets the requirements. The owner or operator must provide
the alternative financial assurance within 120 days after the end of such
fiscal year.
7) The Agency may,
based on a reasonable belief that the owner or operator may no longer meet the
requirements of subsection (e)(1), require reports of financial condition at
any time from the owner or operator in addition to those specified in
subsection (e)(3). If the Agency finds, on the basis of such reports or other
information, that the owner or operator no longer meets the requirements of
subsection (e)(1), the owner or operator must provide alternative financial
assurance that satisfies the requirements of this Section within 30 days after
notification of such a finding.
8)
The Agency must disallow use of the financial tests set forth in this
subsection (e) on the basis of qualifications in the opinion expressed by the
independent certified public accountant in the accountant's report on
examination of the owner's or operator's financial statements (see subsection
(e)(3)(B)) where the Agency determines that those qualifications significantly,
adversely affect the owner's or operator's ability to provide its own financial
assurance by this mechanism. An adverse opinion or a disclaimer of opinion will
be cause for disallowance. The Agency must evaluate all other kinds of
qualifications on an individual basis. The owner or operator must provide
alternative financial assurance that satisfies the requirements of this Section
within 30 days after a notification of Agency disallowance pursuant to this
subsection (e)(8).
9) The owner or
operator is no longer required to submit the items specified in subsection
(e)(3) when either of the following events occur:
A) An owner or operator has substituted
alternative financial assurance that satisfies the requirements of this
Section; or
B) The Agency releases
the owner or operator from the requirements of this Section pursuant to
subsection (i).
10)
Corporate guarantee for financial responsibility. An owner or operator may
comply with the requirements of this Section by obtaining a written corporate
guarantee. The guarantor must be the direct or higher-tier parent corporation
of the owner or operator, a sister firm whose parent corporation is also the
parent corporation of the owner or operator, or a firm with a "substantial
business relationship" with the owner or operator. The guarantor must meet the
requirements applicable to an owner or operator as set forth in subsections
(e)(1) through (e)(8), and it must comply with the terms of the guarantee. The
wording of the guarantee must be identical to the wording specified by the
Agency pursuant to Section 721.251. A certified copy of the guarantee must
accompany the items sent to the Agency that are required by subsection (e)(3).
One of these items must be the letter from the guarantor's chief financial
officer. If the guarantor's parent corporation is also the parent corporation
of the owner or operator, the letter must describe the value received in
consideration of the guarantee. If the guarantor is a firm with a "substantial
business relationship" with the owner or operator, this letter must describe
this "substantial business relationship" and the value received in
consideration of the guarantee. The terms of the guarantee must provide as
follows:
A) Following a determination by the
Agency that the hazardous secondary materials at the owner or operator's
facility covered by this guarantee do not meet the conditions of the exclusion
under Section
721.104(a)(24),
the guarantor must dispose of any hazardous secondary material as hazardous
waste and close the facility in accordance with the applicable closure
requirements set forth in 35 Ill. Adm. Code 724 or 725, or the guarantor must
establish a trust fund in the name of the owner or operator and in the amount
of the current cost estimate that satisfies the requirements of subsection
(a).
B) The corporate guarantee
must remain in force unless the guarantor has sent notice of cancellation by
certified mail to the owner or operator and to the Agency. Cancellation may not
occur, however, during the 120 days beginning on the date on which both the
owner or operator and the Agency have received the notice of cancellation, as
evidenced by the return receipts.
C) If the owner or operator fails to provide
alternative financial assurance that satisfies the requirements of this Section
and obtain the written approval of such alternate assurance from the Agency
within 90 days after the date on which both the owner or operator and the
Agency have received the notice of cancellation of the corporate guarantee from
the guarantor, the guarantor must provide such alternative financial assurance
in the name of the owner or operator.
f) Use of Multiple Financial Mechanisms. An
owner or operator may satisfy the requirements of this Section by establishing
more than one financial mechanism per facility. The mechanisms that an owner or
operator may use for this purpose are limited to a trust fund that satisfies
the requirements of subsection (a), a surety bond that satisfies the
requirements of subsection (b), a letter of credit that satisfies the
requirements of subsection (c), and insurance that satisfies the requirements
of subsection (d). The mechanisms must individually satisfy the indicated
requirements of this Section, except that it is the combination of all
mechanisms used by the owner or operator, rather than any individual mechanism,
that must provide financial assurance for an aggregated amount at least equal
to the current cost estimate. If an owner or operator uses a trust fund in
combination with a surety bond or a letter of credit, the owner or operator may
use the trust fund as the standby trust fund for the other mechanisms. The
owner or operator may establish a single standby trust fund for two or more
mechanisms. The Agency may use any or all of the mechanisms to provide care for
the facility.
g) Use of a Single
Financial Mechanism for Multiple Facilities. An owner or operator may use a
single financial assurance mechanism that satisfies the requirements of this
Section to fulfill the requirements of this Section for more than one facility.
Evidence of financial assurance submitted to the Agency must include a list
showing, for each facility, the USEPA identification number (if any), name,
address, and the amount of funds assured by the mechanism. If the facilities
covered by the mechanism are in more than one Region, USEPA requires the owner
of operator to submit and maintain identical evidence of financial assurance
with each USEPA Region in which a covered facility is located. The amount of
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 facility. In directing funds available through a mechanism
for any of the facilities covered by that mechanism, the Agency may direct only
that amount of funds designated for that facility, unless the owner or operator
agrees to the use of additional funds available under the mechanism.
h) Removal and Decontamination Plan for
Release from Financial Assurance Obligations
1) An owner or operator of a reclamation
facility or an intermediate facility that wishes to be released from its
financial assurance obligations under Section
721.104(a)(24)(F)(vi)
must submit a plan for removing all hazardous secondary material residues from
the facility. The owner or operator must submit the plan to the Agency at least
180 days prior to the date on which the owner or operator expects to cease to
operate under the exclusion.
2) The
plan must, at a minimum, include the following information:
A) For each hazardous secondary materials
storage unit subject to financial assurance requirements pursuant to Section
721.104(a)(24)(F)(vi),
the plan must include a description of how all excluded hazardous secondary
materials will be recycled or sent for recycling, and how all residues,
contaminated containment systems (liners, etc.), contaminated soils, subsoils,
structures, and equipment will be removed or decontaminated as necessary to
protect human health and the environment;
B) The plan must include a detailed
description of the steps necessary to remove or decontaminate all hazardous
secondary material residues and contaminated containment system components,
equipment, structures, and soils, including, but not limited to, procedures for
cleaning equipment and removing contaminated soils, methods for sampling and
testing surrounding soils, and criteria for determining the extent of
decontamination necessary to protect human health and the
environment;
C) The plan must
include a detailed description of any other activities necessary to protect
human health and the environment during this timeframe, including, but not
limited to, leachate collection, run-on and run-off control, etc.;
and
D) The plan must include a
schedule for conducting the activities described that, at a minimum, includes
the total time required to remove all excluded hazardous secondary materials
for recycling and decontaminate all units subject to financial assurance
pursuant to Section
721.104(a)(24)(F)(vi)
and the time required for intervening activities that will allow tracking of
the progress of decontamination.
3) The Agency must provide the owner or
operator and the public, through a newspaper notice, the opportunity to submit
written comments on and request modifications to the plan. The Agency must
accept any comments or requests to modify the plan that it receives no later
than 30 days after the date of publication of the notice. The Agency must also,
in response to a request or in its discretion, hold a public hearing whenever
it determines that such a hearing might clarify one or more issues concerning
the plan. The Agency must give public notice of the hearing at least 30 days
before it occurs. (Public notice of the hearing may be given at the same time
as notice of the opportunity for the public to submit written comments, and the
Agency may combine the two notices.) The Agency must approve, modify, or
disapprove the plan within 90 days after its receipt. If the Agency does not
approve the plan, the Agency must provide the owner or operator with a detailed
written statement of reasons for its refusal, and the owner or operator must
modify the plan or submit a new plan for approval within 30 days after the
owner or operator receives such a written statement from the Agency. The Agency
must approve or modify this owner- or operator-modified plan in writing within
60 days. If the Agency modifies the owner- or operator-modified plan, this
modified plan becomes the approved plan. The Agency must assure that the
approved plan is consistent with this subsection (h). A copy of the modified
plan with a detailed statement of reasons for the modifications must be mailed
to the owner or operator.
4) Within
60 days after completion of the activities described for each hazardous
secondary materials management unit, the owner or operator must submit to the
Agency, by registered mail, a certification that all hazardous secondary
materials have been removed from the unit and that the unit has been
decontaminated in accordance with the specifications in the approved plan. The
certification must be signed by the owner or operator and by a qualified
Professional Engineer. Upon request, the owner or operator must furnish the
Agency with documentation that supports the Professional Engineer's
certification, until the Agency releases the owner or operator from the
financial assurance requirements of Section
721.104(a)(24)(F)(vi).
i) Release of the Owner or Operator from the
Requirements of This Section. Within 60 days after receiving certifications
from the owner or operator and a qualified Professional Engineer that all
hazardous secondary materials have been removed from the facility or from a
unit at the facility and the facility or unit has been decontaminated in
accordance with the approved plan in compliance with the requirements of
subsection (h), the Agency must determine whether or not the owner or operator
has accomplished the objectives of removing all hazardous secondary materials
from the facility or from a unit at the facility and decontaminating the
facility in accordance with the approved plan. If the Agency determines that
the owner or operator has accomplished both objectives, the Agency must notify
the owner or operator in writing, within the 60 days, that the owner and
operator are no longer required pursuant to Section
721.104(a)(24)(F)(vi)
to maintain financial assurance for that facility or unit at the facility. If
the Agency determines that the owner or operator has not accomplished both
objectives, it must provide the owner or operator with a detailed written
statement of the basis for its determination.
