Current through September 18, 2024
Authority: IC
13-14-8-7; IC
13-15; IC 13-19-3
Affected: IC 13-14; IC 13-30-2; IC 36-9-30
Sec. 2.
An owner, operator, or registrant that chooses to meet the
financial assurance requirement of this article through a trust fund shall
establish the trust fund for financial assurance in accordance with the
following requirements:
(1) The trust
fund is established on forms:
(A) provided by
the commissioner; or
(B) approved
by the commissioner.
(2)
Each trust agreement must do the following:
(A) Identify facilities and corresponding
closure cost estimates covered by the trust agreement.
(B) Establish a trust fund in an amount
determined by section 1(b) of this rule that guarantees that payments from that
fund either:
(i) reimburse the owner,
operator, or registrant of the facility for department-approved closure work
done; or
(ii) pay the department
for doing required closure work.
(C) Require that annual valuations of the
trust be submitted to the commissioner.
(D) Require successor trustees to notify the
commissioner, in writing, of their appointment at least ten (10) days before
the effective date of the appointment.
(E) Require the trustee to notify the
commissioner, in writing, of the failure of the owner, operator, or registrant
of the facility to make a required payment into the fund.
(F) Establish that the trust is irrevocable
unless terminated, in writing, with the approval of the:
(i) owner, operator, or registrant of the
facility;
(ii) trustee;
and
(iii) commissioner.
(G) Certify that the signer of the
trust agreement for the owner, operator, or registrant of the facility was duly
authorized to bind the owner, operator, or registrant of the
facility.
(H) All signatures must
be notarized by a notary public commissioned to be a notary public in Indiana
at the time of the notarization.
(I) Establish that the trustee is:
(i) authorized to act as a trustee;
and
(ii) an entity whose operations
are regulated and examined by a federal or state of Indiana agency.
(3) Before the facility
begins operation, the owner, operator, or registrant shall:
(A) deposit into the trust fund the amount
determined by section 1(b) of this rule; and
(B) submit to the commissioner a receipt from
the trustee for the payment into the trust fund.
(4) If the owner, operator, or registrant
establishes a trust fund after having used one (1) or more alternative
mechanisms, the payment into the trust fund must be in the amount determined by
section 1(b) of this rule.
(5) The
trustee shall evaluate the trust fund annually, as of the day the trust was
created or on an earlier date as may be provided in the agreement. The trustee
shall notify the owner, operator, or registrant of the facility and the
commissioner within thirty (30) days after the evaluation date.
(6) Release of excess funds may be requested
as follows:
(A) If the value of the financial
assurance is greater than the total amount of the current cost estimate, the
owner, operator, or registrant of the facility may submit a written request to
the commissioner for release of the amount in excess of the current cost
estimate.
(B) Within sixty (60)
days after receiving a request from the owner, operator, or registrant of the
facility for a release of funds, the commissioner shall instruct the trustee to
release to the owner, operator, or registrant of the facility the funds the
commissioner specifies in writing to be in excess of the current cost
estimate.
(7)
Reimbursement for removal expenses may be requested as follows:
(A) After initiating removal, the owner,
operator, or registrant of the facility, or any other person authorized to
perform removal, may request reimbursement for removal expenditures by
submitting itemized bills to the commissioner.
(B) Within sixty (60) days after receiving
the itemized bills for removal activities, the commissioner shall determine
whether the expenditures are in accordance with the removal plan. The
commissioner shall instruct the trustee to make reimbursement in the amounts
the commissioner specifies in writing in accordance with the removal
plan.
(C) If the commissioner
determines, based on available information, that the cost of removal will be
greater than the value of the trust fund, the commissioner shall withhold
reimbursement of the amounts necessary to accomplish removal until it is
determined that the owner, operator, or registrant of the facility is no longer
required to maintain financial assurance for removal. In the event the fund is
inadequate to pay all claims, the commissioner shall pay claims according to
the following priority:
(i) A person with whom
the department has contracted to perform removal activities.
(ii) A person who has completed removal
authorized by the commissioner.
(iii) A person who has completed work that
furthered the removal.
(iv) The
owner, operator, or registrant of the facility and related business entities.
