Current through Register Vol. 48, No. 38, September 20, 2024
a) An owner or operator may satisfy the
requirements of this Subpart by obtaining a surety bond which conforms to the
requirements of this Section and submitting the bond to the Agency. A surety
bond obtained by an owner or operator of an MSWLF unit must be effective before
the initial receipt of waste or before April 9, 1997 (the effective date of the
financial assurance requirements under RCRA Subtitle D regulations), or such
later date granted pursuant to Section
811.700(g),
whichever is later, in the case of closure and post-closure care, or no later
than 120 days after the remedy has been selected in accordance with the
requirements of Section
811.325.
b) The surety company issuing the bond shall
be licensed to transact the business of insurance by the Department of
Insurance, pursuant to the Illinois Insurance Code [215 ILCS 5 ], or at a
minimum the insurer must be licensed to transact the business of insurance or
approved to provide insurance as an excess or surplus lines insurer by the
insurance department in one or more states, and approved by the U.S. Department
of the Treasury as an acceptable surety. [415 ILCS
5/21.1 (a.5)]
c) The surety bond must be on the forms
specified in Appendix A, Illustration D.
d) Any payments made under the bond will be
placed in the Landfill Closure and Post-Closure Fund within the State
Treasury.
e) Conditions:
1) The bond must guarantee that the owner or
operator will:
A) Provide closure and
post-closure care in accordance with the closure and post-closure care plans in
the permit and, if the bond is a corrective action bond, provide corrective
action in accordance with Section
811.326;
and
B) Provide alternative
financial assurance, as specified in this Subpart, and obtain the Agency's
written approval of the assurance provided within 90 days after receipt by both
the owner or operator and the Agency of a notice from the surety that the bond
will not be renewed for another term.
2) The surety will become liable on the bond
obligation when, during the term of the bond, the owner or operator fails to
perform as guaranteed by the bond. The owner or operator fails to perform when
the owner or operator:
A) Abandons the
site;
B) Is adjudicated
bankrupt;
C) Fails to initiate
closure of the site or post-closure care or corrective action when ordered to
do so by the Board pursuant to Title VIII of the Act, or when ordered to do so
by a court of competent jurisdiction;
D) Notifies the Agency that it has initiated
closure or corrective action, or initiates closure or corrective action, but
fails to close the site or provide post-closure care or corrective action in
accordance with the closure and post-closure care or corrective action
plans.
E) For a corrective action
bond, fails to implement corrective action at an MSWLF unit in accordance with
Section 811.326; or
F) Fails to
provide alternative financial assurance, as specified in this Subpart, and
obtain the Agency's written approval of the assurance provided within 90 days
after receipt by both the owner or operator and the Agency of a notice from the
surety that the bond will not be renewed for another term.
3) Upon failure of the owner or operator to
perform as guaranteed by the bond, the surety shall have the option of:
A) providing closure and post-closure care in
accordance with the closure and post-closure care plans; or
B) carrying out corrective action in
accordance with the corrective action plan; or
C) paying the penal sum.
f) Penal sum:
1) The penal sum of the bond must be in an
amount at least equal to the current cost estimate.
2) 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.
3) Whenever the current cost estimate
increases to an amount greater than the penal sum, the owner or operator,
within 90 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 that increase to the Agency or obtain other financial assurance, as
specified in this Subpart, and submit evidence of the alternative financial
assurance to the Agency.
g) Term:
1)
The bond must be issued for a term of at least one year and must not be
cancelable during that term.
2) The
surety bond must provide that, on the current expiration date and on each
successive expiration date, the term of the surety bond will be automatically
extended for a period of at least one year unless, at least 120 days before the
current expiration date, the surety notifies both the owner or operator and the
Agency by certified mail of a decision not to renew the bond. Under the terms
of the surety bond, 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.
3) The Agency shall
release the surety by providing written authorization for termination of the
bond to the owner or operator and the surety when either of the following
occurs:
A) An owner or operator substitutes
alternative financial assurance, as specified in this Subpart; or
B) The Agency releases the owner or operator
from the requirements of this Subpart in accordance with 35 Ill. Adm. Code
813.403(b).
h) Cure of default and
refunds:
1) The Agency shall release the
surety if, after the surety becomes liable on the bond, the owner or operator
or another person provides financial assurance for closure and post-closure
care of the site or corrective action at an MSWLF unit, unless the Agency
determines that the closure or post-closure care plan, corrective action at an
MSWLF unit, or the amount of substituted financial assurance is inadequate to
provide closure and post-closure care or implement corrective action at an
MSWLF unit in compliance with this Part.
2) After closure and post-closure care have
been completed in accordance with the closure and post-closure care plans and
the requirements of this Part or after the completion of corrective action at
an MSWLF unit in accordance with Section 811.326, the Agency shall refund any
unspent money which was paid into the "Landfill Closure and Post-Closure Fund"
by the surety, subject to appropriation of funds by the Illinois General
Assembly.
i) The surety
will not be liable for deficiencies in the performance of closure by the owner
or operator after the Agency releases the owner or operator from the
requirements of this Subpart.
BOARD NOTE: MSWLF corrective action language at subsection
(a) is derived from
40 CFR
258.74(b)(1) (1996). P.A.
89-200, signed by the Governor on July 21, 1995 and effective January 1, 1996,
amended the deadline for financial assurance for MSWLFs from April 9, 1995 to
the date that the federal financial assurance requirements actually become
effective, which was April 9, 1997. On November 27, 1996 (61 Fed. Reg. 60337),
USEPA added
40 CFR
258.70(c) (1996), codified
here as Section
811.700(g),
to allow states to waive the compliance deadline until April 9, 1998. The other
clarifying changes reflect the inclusion of financial assurance requirements
for implementing corrective action at MSWLF units under this
Section.
