Current through September 18, 2024
Authority: IC 13-14-8-7; IC 13-15; IC 13-19-3
Affected: IC 13-14; IC 13-30; IC 36-9-30
Sec. 1.
(a) An owner
or operator that is required to register under this article shall establish
financial assurance for closure of the registered facility. The financial
assurance must be:
(1) provided as a surety
bond in accordance with subsection (d); and
(2) in the amount that provides for closure
of the registered facility in the event the owner or operator has failed to
close the registered facility.
(b) The amount of financial assurance that
provides for closure is determined by the maximum amount in tons of biomass,
appropriate feedstock, and residue that may be stored at the facility at one
(1) time, multiplied by ninety dollars ($90). For a facility with a confined
feeding operation (CFO) approval or concentrated animal feeding operation
(CAFO) permit that must comply with this rule in accordance with
329 IAC
11.5-3-1(6), the determination of the
amount of financial assurance is required to include only the maximum amount of
appropriate feedstock and residue, but not biomass, that may be stored at the
facility.
(c) Instead of the amount
of financial assurance that provides for closure determined under subsection
(b), an owner or operator may submit a demonstration of justified lower
disposal costs to the commissioner for approval. This approval must:
(1) be reconsidered with subsequent renewals;
and
(2) comply with the inflation
calculation required by
329 IAC
11.5-4-1(d).
(d) The surety bond must be established as
follows:
(1) On forms approved by the
commissioner.
(2) All surety bonds
must contain the following:
(A) The
establishment of minimum bond amount determined by subsection (b) or
(c).
(B) Provision that, upon
notice from the commissioner that the owner or operator has failed to close the
facility under the requirements of
329 IAC 11.5-7-1, the
surety company shall do either of the following:
(i) Deposit the amount that provides for
closure into a standby trust fund, as directed by the commissioner.
(ii) If the financial assurance amount is
less than twenty thousand dollars ($20,000) and a standby trust fund is not
established, submit all payments directly to the department for the purpose of
accomplishing required closure work.
(C) Provision that the surety company may not
cancel the bond without first sending notice of cancellation by certified mail
to the owner or operator and the commissioner at least one hundred twenty (120)
days before the effective date of the cancellation.
(D) Provision that the owner or operator may
not terminate the bond without prior written authorization by the
commissioner.
(E) Provision that
the owner or operator shall establish a standby trust fund in accordance with
subdivision (5) if the owner's or operator's total financial assurance
obligations for all facilities registered under this article are twenty
thousand dollars ($20,000) or more.
(3) The surety company issuing the bond must
be:
(A) among those listed as acceptable
sureties for federal bonds in Circular 570* of the United States Department of
the Treasury; and
(B) authorized to
do business in Indiana.
(4) The surety company is not liable for
deficiencies in the performance of closure by the owner or operator after the
closure certification is deemed adequate by the commissioner.
(5) If the financial assurance amount
determined under this rule is twenty thousand dollars ($20,000) or more, the
owner or operator shall establish a standby trust fund to be utilized in the
event the owner or operator fails to fulfill closure obligations and the bond
guarantee is exercised. The trust fund must be established in accordance with
the following:
(A) On forms approved by the
commissioner.
(B) The establishment
of a standby trust fund in the amount determined by subsection (b) or (c) for
commissioner-approved work done to close the facility.
(C) The requirement for successor trustees to
notify the commissioner, in writing, of their appointment at least ten (10)
days prior to the appointment becoming effective.
(D) The requirement that the funded trust is
irrevocable unless terminated in writing by the commissioner.
(E) Include a notarization of all signatures
by a notary public commissioned to be a notary public in the state where
notarization occurs at the time of notarization.
(F) The requirement that the trustee is:
(i) authorized to act as a trustee;
and
(ii) an entity whose operations
are regulated and examined by a federal agency or state agency.
(e) The owner
or operator may use a single surety bond to meet the requirements for more than
one (1) facility. Evidence of financial assurance submitted to the commissioner
must include a list showing, for each facility, the following:
(1) The registration number, name, and
address.
(2) The amount of funds
available through the surety bond that must be not less than the sum of funds
that would be available if a separate surety bond had been established and
maintained for each facility.
(f) An owner or operator shall do the
following:
(1) Notify the commissioner by
certified mail within ten (10) days from commencement of a voluntary or
involuntary proceeding under bankruptcy under
11
U.S.C. 101 et seq., naming the owner or
operator as debtor. An owner or operator who has a surety bond is deemed to be
without the required financial assurance in the event of bankruptcy of the
institution issuing the surety bond.
(2) Reestablish financial assurance within
sixty (60) days after an event described in subdivision (1). The registered
facility cannot operate outside the sixty (60) day period without establishing
a surety bond for the amount required under subsection (b) or (c).
(g) In addition to any other
penalties provided for in this article or in IC 13-14 and IC 13-30, any failure
to obtain, maintain, or fund financial assurance as required by this rule
within the prescribed time limits is grounds for a proceeding to revoke the
facility's registration or to order final closure of the registered
facility.
(h) After the closure
certification is deemed adequate by the commissioner, the owner or operator of
the registered facility is released from the obligation of maintaining
financial assurance under this article.
*This document is available for viewing at
https://www.fiscal.treasury.gov/surety-bonds/circular-570.html and may be
obtained from the United States Department of the Treasury, Bureau of the
Fiscal Service, Surety Bond Program, 3700 East West Highway, Room 6D22,
Hyattsville, MD 20782.
