Current through Register Vol. 48, No. 38, September 20, 2024
a) An owner or
operator may satisfy the requirements of this Subpart by establishing a trust
fund that conforms to the requirements of this Section and submitting an
original signed duplicate of the trust agreement to the Agency.
b) 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.
c) Trust Agreement
1) The trust agreement must be on Agency
forms and must be accompanied by a formal certification of acknowledgment on an
Agency form.
2) The trust agreement
must be irrevocable and must contain provisions addressing establishing,
managing, and terminating the trust.
3) The trust agreement must include a
schedule listing the GCDD recovery facility or facilities covered by the trust
and the current approved removal cost for each of those GCDD recovery
facilities.
4) The trust agreement
must prohibit third-party access to the trust funds other than as provided in
the trust agreement. This prohibition must be in the Agency form and must be
updated within 60 days after a change in the amount of the current approved
removal cost for any GCDD recovery facility covered by the trust.
d) Payments into the Trust
1) The owner or operator must make a payment
into the trust fund each year during the pay-in period. However, after the
pay-in period expires, neither the owner nor the operator may use a pay-in
period to fund the trust and must instead make a lump sum payment to further
fund the trust.
2) Pay-in Period
A) The pay-in period for a trust fund used as
financial assurance under this Part is three years.
B) The pay-in period for any facility that
has not accepted GCDD before establishing a trust fund as financial assurance
under this Part starts on the date any of the GCDD recovery facilities covered
by the trust agreement first receives GCDD.
C) The pay-in period for any facility
operating at the time the owner or operator establishes a trust fund as the
financial assurance mechanism starts on the date the trust fund is
established.
3) Annual
payments are determined by subtracting the value of the trust fund from the
current approved cost estimate for all facilities covered by the trust
agreement and dividing the difference by the number of years remaining in the
pay-in period.
4) First Annual
Payment
A) For any facility that has not
accepted GCDD before establishing a trust fund as financial assurance under
this Part, the owner or operator must make the first annual payment before GCDD
is received at a facility covered by the trust agreement. Before receiving GCDD
at a facility covered by the trust agreement, the owner or operator must submit
to the Agency a receipt from the trustee for the first annual
payment.
B) For any facility
operating at the time the owner or operator establishes a trust fund as the
financial assurance mechanism, the owner or operator must make the first annual
payment immediately upon establishing the trust fund for use as financial
assurance under this Part. The first payment must be made before submitting an
original signed duplicate to the Agency under subsection (a). The owner or
operator must submit to the Agency a receipt from the trustee for the first
annual payment at the time the original signed duplicate is submitted to the
Agency.
5) Subsequent
annual payments must be made within 30 days after each anniversary of the first
payment.
6) The owner or operator
may either accelerate payments into the trust fund or may deposit the full
amount of the current approved removal cost estimate at the time the fund is
established.
7) The owner or
operator must maintain the value of the fund at no less than the value the fund
would have if annual payments were made as specified in subsection
(d)(3).
8) If the owner or operator
establishes a trust fund after having used one or more alternative mechanisms,
the first payment must be at least the amount the fund would contain if the
trust fund were established initially and payments were made as provided in
subsection (d)(3).
e)
Evaluation by Trustee
1) The trustee must
evaluate the trust fund annually as of the anniversary of the day the trust was
created or on another date provided in the agreement.
2) Within 30 days after the evaluation date
each year, the trustee must furnish the owner or operator and the Agency with a
statement confirming the value of the trust fund.
3) The failure of the owner or operator to
object in writing to the trustee within 90 days after the trustee furnishes the
statement to the owner or operator and the Agency constitutes a conclusively
binding assent by the owner or operator, which bars the owner or operator from
asserting any claim or liability against the trustee regarding matters
disclosed in the statement.
f) After the pay-in period is completed,
whenever the 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. If the value of the fund is less than the amount of the new cost
estimate, the owner or operator must, within 60 days after the change in the
cost estimate, either deposit an amount into the fund so that its value after
this deposit at least equals the amount of the cost estimate, or obtain other
financial assurance as specified in this Subpart to cover the
difference.
g) Release of Excess
Funds
1) If the value of the trust fund is
greater than the total amount of the current approved closure cost estimate,
the owner or operator may submit a written request to the Agency for a release
of the amount exceeding the current approved closure cost estimate.
2) If an owner or operator substitutes other
financial assurance as specified in this Subpart for all or part of the trust
fund, he or she may submit a written request to the Agency for release of the
amount exceeding the current approved closure cost estimate covered by the
trust fund.
3) As soon as
practicable after receiving a request from the owner or operator for a release
of funds under this subsection, but within 120 days following the Agency's
receipt of the request, the Agency must instruct the trustee to release to the
owner or operator the amount of funds the Agency specifies in writing as
exceeding the current approved closure cost estimate.
h) Reimbursement for Removal Expenses
1) After initiating closure, an owner or
operator, or any other person authorized to perform closure, may request
reimbursement 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 remain in the trust fund to cover the
costs of closure.
2) As soon as
practicable after receiving the itemized bills for partial or final closure
activities, but within 120 days following the Agency's receipt of the itemized
bills, the Agency must determine whether the expenditures are for closure
activities under Section
820.305. If the Agency
determines, based on the information available to it, that the remaining cost
of closure will be less than the value of the trust fund, the Agency must
instruct the trustee to make reimbursement in such amounts as the Agency
specifies in writing as expenditures for closure activities under Section
820.305.
3) If the Agency
determines, based on such information available to it, that the remaining cost
of closure will be greater than the value of the trust fund, it must withhold
reimbursement of amounts it determines are necessary to preserve the trust
corpus to accomplish closure until it determines that the owner or operator is
no longer required to maintain financial assurance. If the fund is inadequate
to pay all claims after closure is completed, the Agency must pay claims
according to the following sequential priorities:
A) Persons the Agency has contracted and
authorized to perform closure activities;
B) Persons who have completed closure
activities authorized by the Agency;
C) Persons who have completed work that
furthered closure;
D) The owner or
operator and related business entities.