Indiana Administrative Code
Title 329 - SOLID WASTE MANAGEMENT DIVISION
Article 10 - SOLID WASTE LAND DISPOSAL FACILITIES
Rule 39 - Solid Waste Land Disposal Facilities; Financial Responsibility
Section 39-10 - Financial assurance for corrective action for municipal solid waste landfills
Universal Citation: 329 IN Admin Code 39-10
Current through September 18, 2024
Authority: IC 13-14-8-7; IC 13-15; IC 13-19-3
Affected: IC 13-20; IC 36-9-30
Sec. 10.
(a) If the permittee of a MSWLF is required to undertake a corrective action program for ground water impacts, the permittee shall establish financial assurance for the most recent corrective action program. The permittee shall choose from the following options:
(1) The trust fund option,
including the following:
(A) The permittee
shall demonstrate financial assurance for corrective action by doing as
follows:
(i) Obtain a trust fund on forms as
approved by the commissioner.
(ii)
Submit an original signed copy of the trust agreement to the
commissioner.
(B) All
trust funds must conform to the requirements detailed in section 2(a)(1)(B) of
this rule, with the exception that the term "corrective action" be substituted
for the term "closure".
(2) The performance surety bond option,
including the following:
(A) The permittee
shall demonstrate financial assurance for corrective action by doing as
follows:
(i) Obtain a performance surety bond
on forms as approved by the commissioner.
(ii) Submit an original signed copy of the
performance surety bond to the commissioner.
(B) All surety bonds must conform to the
requirements detailed in section 2(a)(2)(C) through 2(a)(2)(F) of this rule,
with the exception that the term "corrective action" be substituted for the
term "closure".
(3) The
letter-of-credit option, including the following:
(A) The permittee shall demonstrate financial
assurance for corrective action by doing as follows:
(i) Obtain a letter-of-credit on forms as
approved by the commissioner.
(ii)
Submit an original signed copy of the letter-of-credit to the
commissioner.
(B) All
letters of credit must conform to the requirements detailed in section
2(a)(3)(B) through 2(a)(3)(D) of this rule, with the exception that the term
"corrective action" be substituted for the term "closure".
(4) The local government financial test
option, including the following:
(A) This
financial test is only available for permittees that are local governments. As
used in this subdivision, "local government" means a county, municipality,
township, or solid waste management district.
(B) A permittee shall meet the criteria set
forth in section 2(a)(6)(B) and 2(a)(6)(C) of this rule to be deemed to have
established financial responsibility.
(C) If, at any time, the permittee fails to
meet the financial test, the permittee shall establish an alternate financial
responsibility mechanism within one hundred twenty (120) days after the end of
the fiscal year for which the financial data required by this subdivision shows
that the permittee no longer meets the requirements.
(D) The commissioner may disallow use of this
test in accordance with the following:
(i) On
the basis of qualifications in the opinion expressed in the state board of
accounts' annual financial audit of the permittee. An adverse opinion or a
disclaimer of opinion is cause for disallowance.
(ii) Other qualifications may be cause for
disallowance if, in the opinion of the commissioner, the qualifications
indicate the permittee does not meet the requirements of this
subdivision.
(E) The
permittee shall choose an alternate financial responsibility mechanism within
ninety (90) days after notification of the disallowance under clause
(D).
(5) The local
government guarantee option. The local government guarantor and the permittee
shall meet the requirements of section 2(a)(7)(B) and 2(a)(7)(C) of this rule
for the permittee to be deemed to have established financial
responsibility.
(6) The insurance
option, including the following:
(A) The
permittee shall do as follows:
(i) Provide
evidence of insurance on forms approved by the commissioner.
(ii) Submit a certificate of corrective
action insurance to the commissioner.
(B) All insurance must conform to the
requirements detailed in section 2(a)(4)(B) and 2(a)(4)(C) of this rule, with
the exception that the term "corrective action" be substituted for the term
"closure".
(b) The permittee of a MSWLF shall choose a financial responsibility mechanism that guarantees funds will be available to meet the corrective action requirements under 329 IAC 10-21-13. The permittee shall provide continuous coverage for corrective action until released from financial assurance requirements for corrective action by demonstrating compliance with 329 IAC 10-2113, and shall comply with the following, as applicable:
(1) Payments into the trust fund must be made
as follows:
(A) Annually by the permittee
over half of the estimated length of the corrective action program in the case
of corrective action for known releases. This period is referred to as the
pay-in period.
(B) For a trust fund
used to demonstrate financial assurance for corrective action, the first
payment into the trust fund must be at least equal to one-half (1/2) of the
current cost estimate for corrective action divided by the number of years in
the corrective action pay-in period. The amount of subsequent payments must be
determined by the following formula:
Where: RB = the most recent estimate of the required trust fund balance for corrective action (that is, the total costs that will be incurred during the second half of the corrective action period)
CV = the current value of the trust fund
Y = the number of years remaining in the pay-in period
(C) The initial payment into the
trust fund must be made not later than one hundred twenty (120) days after the
corrective action remedy has been selected in accordance with
329 IAC
10-21-13.
(2) The surety bond must be effective not
later than one hundred twenty (120) days after the corrective action remedy has
been selected in accordance with
329 IAC
10-21-13.
(3) The letter-of-credit must be effective
not later than one hundred twenty (120) days after the corrective action remedy
has been selected in accordance with
329 IAC
10-21-13.
(4) The local government financial test must
be effective not later than one hundred twenty (120) days after the corrective
action remedy has been selected in accordance with
329 IAC
10-21-13.
(5) The local government guarantee must be
effective not later than one hundred twenty (120) days after the corrective
action remedy has been selected in accordance with
329 IAC
10-21-13.
(c) A permittee of a MSWLF required to undertake a corrective action program for ground water impacts shall comply with the following requirements for the corrective action cost estimate:
(1) Have a detailed written estimate, in
current dollars, of the cost of hiring a third party to perform the corrective
action in accordance with the program required under
329 IAC
10-21-13.
(2) The corrective action cost estimate must
account for the total costs of corrective action activities as described in the
corrective action plan for the entire corrective action period.
(3) The permittee shall notify the
commissioner that the estimate has been placed in the operating
record.
(4) The permittee shall
adjust the corrective action cost estimate in accordance with the following:
(A) Annually adjust the estimate for
inflation until the corrective action program is completed in accordance with
329 IAC
10-21-13. The annual adjustment must use an inflation
factor derived from the most recent implicit price deflator for gross national
product published by the U.S. Department of Commerce in its Survey of Current
Business*, specified as follows:
(i) The first
adjustment is made by multiplying the current corrective action cost estimate
by the inflation factor, with the result being the adjusted corrective action
cost estimate.
(ii) Subsequent
adjustments are made by multiplying the latest adjusted corrective action cost
estimate by the latest inflation factor.
(B) Increase the corrective action cost
estimate and the amount of financial assurance provided under subsections (a)
and (b) if changes in the corrective action program or MSWLF conditions
increase the maximum costs of corrective action. The revised corrective action
cost estimate must be adjusted annually for inflation in accordance with clause
(A).
(C) The permittee may reduce
the amount of the corrective action cost estimate and the amount of financial
assurance provided under subsections (a) and (b) if the cost estimate exceeds
the maximum remaining costs of corrective action. The permittee shall notify
the commissioner that the justification for the reduction of the corrective
action cost estimate and the amount of financial assurance has been placed in
the operating record.
*This document is available for viewing at https://apps.bea.gov/scb/ and may be obtained from the United States Department of Commerce, Bureau of Economic Analysis, 4600 Silver Hill Road, Suitland, MD 20746.
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