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
originally 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) The trust agreement must be irrevocable,
must be on forms prescribed by the Agency, must be accompanied by a formal
certification of acknowledgment on a form prescribed by the Agency, and must
contain provisions addressing, at a minimum, the establishment, management, and
termination of the trust and a schedule listing, at a minimum, the sites
covered by the trust, the current approved removal cost for each of those
sites, and prohibitions against third party access to the trust funds other
than as provided in the trust agreement. The schedule required under this
subsection (c) must be in the form prescribed by the Agency and must be updated
within 60 days after a change in the amount of the current approved removal
cost for any site 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
expiration of the pay-in period, 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) The
pay-in period is three years and commences on the date any of the sites covered
by the trust agreement first receives used or waste tires.
3) Annual payments are determined by the
following formula:
|
Annual payment
|
=
|
(CE-CV)/Y
|
|
|
|
|
|
where:
|
|
|
|
|
|
|
|
|
CE
|
=
|
Current total approved removal cost estimate for all
sites covered by the trust agreement
|
|
|
CV
|
=
|
Current value of the trust fund
|
|
|
Y
|
=
|
Number of years remaining in the pay in
period.
|
4)
The owner or operator must make the first annual payment before used or waste
tires are received at a site covered by the trust agreement. Before receiving
used tires at a site covered by the trust agreement, the owner or operator must
submit to the Agency a receipt from the trustee for the first annual
payment.
5) Subsequent annual
payments must be made no later than 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 in at least the amount the fund would contain if the
trust fund were established initially and payments made as provided in
subsection (d)(3).
e)
The trustee must evaluate the trust fund annually as of the anniversary of the
day the trust was created or on such other date as may be provided in the
agreement. 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 within 30 days after the evaluation date. The failure
of the owner or operator to object in writing to the trustee within 90 days
after the statement has been furnished to the owner or operator and the Agency
constitutes a conclusively binding assent by the owner or operator, barring the
owner or operator from asserting any claim or liability against the trustee
with respect to matters disclosed in the statement.
f) After the pay-in period is completed,
whenever the removal cost estimate changes, the owner or operator must compare
the new 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 estimate, the
owner or operator must, within 60 days after the change in the removal cost
estimate, either deposit an amount into the fund so that its value after this
deposit at least equals the amount of the removal 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 removal cost estimate,
the owner or operator may submit a written request to the Agency for a release
of the amount in excess of the current approved removal 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 in excess of the current approved removal 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 pursuant to this
subsection (g) but not more than 120 days following the Agency's receipt of the
request, the Agency must instruct the trustee to release to the owner or
operator such funds as the Agency specifies in writing to be in excess of the
current approved removal cost estimate.
h) Reimbursement for removal expenses:
1) After initiating removal, an owner or
operator, or any other person authorized to perform removal, may request
reimbursement for partial or final removal 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 removal.
2) As soon as
practicable after receiving the itemized bills for partial or final removal
activities, but no more than 120 days following the Agency's receipt of the
itemized bills, the Agency must determine whether the expenditures are in
accordance with the removal plan. If the Agency determines, based on the
information available to it, that the remaining cost of removal 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 in accordance with the removal plan.
3) If the Agency determines, based on such
information as is available to it, that the remaining cost of removal will be
greater than the value of the trust fund, it must withhold reimbursement of
such amounts as it determines are necessary to preserve the trust corpus in
order to accomplish removal until it determines that the owner or operator is
no longer required to maintain financial assurance for removal. In the event
the fund is inadequate to pay all claims after removal is completed, the Agency
must pay claims according to the following priorities:
A) Persons with whom the Agency has
contracted and authorized to perform removal activities (first
priority);
B) Persons who have
completed removal activities authorized by the Agency (second
priority);
C) Persons who have
completed work which furthered the removal (third priority);
D) The owner or operator and related business
entities (last priority).
