Current through March 20, 2024
Authority: IC 13-14-8; IC 13-22-2; IC 13-22-8-1; IC
13-22-9-7
Affected: IC 13-22; IC 13-30-3
Sec. 6.
(a) The
owner or operator of a hazardous waste management unit subject to the
requirements of section 5 of this rule shall establish financial assurance for
post-closure care in accordance with the approved post-closure plan for the
facility sixty (60) days prior to the initial receipt of hazardous waste or the
effective date of this rule, whichever is later. The owner or operator shall
choose from the options in this section.
(b) The requirements for a post-closure trust
fund are as follows:
(1) An owner or operator
may satisfy the requirements of this section by establishing a post-closure
trust fund that conforms to the requirements of this subsection and submitting
an originally signed duplicate of the trust agreement to the commissioner. An
owner or operator of a new facility shall submit the originally signed
duplicate of the trust agreement to the commissioner at least sixty (60) days
before the date on which hazardous waste is first received for disposal. 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.
(2) The wording of the
trust agreement must be identical to the wording specified in section 10(a) of
this rule, and the trust agreement must be accompanied by a formal
certification of acknowledgment in accordance with
329 IAC
3.1-14-26(b). Schedule A of the trust
agreement must be updated within sixty (60) days after a change in the amount
of the current post-closure cost estimate covered by the agreement.
(3) Payments into the trust fund must be made
annually by the owner or operator over the term of the first final (state)
permit or over the remaining operating life of the facility as estimated in the
closure plan, whichever period is shorter; this period is hereinafter referred
to as the pay-in-period. The payments into the post-closure trust fund must be
made as follows:
(A) For a new facility, the
first payment must be made before the initial receipt of hazardous waste for
disposal. A receipt from the trustee for this payment must be submitted by the
owner or operator to the commissioner before this initial receipt of hazardous
waste. The first payment must be at least equal to the current post-closure
cost estimate, except as provided in subsection (h), divided by the number of
years in the pay-in-period. Subsequent payments must be made no later than
thirty (30) days after each anniversary date of the first payment. The amount
of each subsequent payment must be determined by the following formula:
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Where: CE = The current post-closure cost estimate.
CV = The current value of the trust fund.
Y = The number of years remaining in the
pay-in-period.
(B) If an
owner or operator establishes a trust fund in accordance with this section, and
the value of that trust fund is less than the current post-closure cost
estimate when a permit is awarded for the facility, the amount of the current
post-closure cost estimate still to be paid into the trust fund must be paid in
over the pay-in-period as defined in this subdivision. Payments must continue
to be made no later than thirty (30) days after each anniversary date of the
first payment made under
329
IAC 3.1-14. The amount of each payment must be
determined by the following formula:
Click here to
view
Where: CE = The current post-closure cost estimate.
CV = The current value of the trust fund.
Y = The number of years remaining in the
pay-in-period.
(4)
The owner or operator may accelerate payments into the trust fund, or the owner
or operator may deposit the full amount of the current post-closure cost
estimate at the time the fund is established. The owner or operator shall
maintain the value of the fund at no less than the value that the fund would
have if annual payments were made in accordance with subdivision (3).
(5) If the owner or operator establishes a
post-closure trust fund after having used one (1) or more alternate mechanisms
specified in this section or
329 IAC
3.1-14-15, the first payment must be in at least the
amount that the fund would contain if the trust fund was established initially
and annual payments made according to specifications of this section and
329 IAC
3.1-14-15 as applicable.
(6) After the pay-in-period is completed,
whenever the current post-closure cost estimate changes during the operating
life of the facility, the owner or operator shall 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,
within sixty (60) days after the change in the cost estimate, shall either:
(A) deposit an amount into the fund so that
its value after this deposit at least equals the amount of the current
post-closure cost estimate; or
(B)
obtain other financial assurance in accordance with this section to cover the
difference.
(7) During
the operating life of the facility, if the value of the trust fund is greater
than the total amount of the current post-closure cost estimate, the owner or
operator may submit a written request to the commissioner for release of the
amount in excess of the current post-closure cost estimate.
(8) If an owner or operator substitutes other
financial assurance in accordance with this section for all or part of the
trust fund, the owner or operator may submit a written request to the
commissioner for release of the amount in excess of the current post-closure
cost estimate covered by the trust fund.
(9) Within sixty (60) days after receiving a
request from the owner or operator for release of funds in accordance with
subdivision (7) or (8), the commissioner shall instruct the trustee to release
to the owner or operator funds the commissioner specifies in writing.
(10) During the period of post-closure care,
the commissioner may approve a release of funds if the owner or operator
demonstrates to the commissioner that the value of the trust fund exceeds the
remaining cost of post-closure care.
(11) An owner or operator or any other person
authorized to conduct post-closure care may request reimbursements for
post-closure care expenditures by submitting itemized bills to the
commissioner. Within sixty (60) days after receiving bills for post-closure
care activities, the commissioner shall instruct the trustee to make
reimbursements in amounts the commissioner specifies in writing, if the
commissioner determines that the post-closure care expenditures are in
accordance with the approved post-closure plan, or otherwise justified. If the
commissioner does not instruct the trustee to make reimbursements, the
commissioner shall provide the owner or operator with a detailed written
statement of reasons.
(12) The
commissioner shall agree to termination of the trust when:
(A) the owner or operator substitutes
alternate financial assurance in accordance with this section; or
(B) the commissioner releases the owner or
operator from the requirements of this section in accordance with subsection
(j).
(c) The
requirements for a surety bond guaranteeing payment into a post-closure trust
fund are as follows:
(1) An owner or operator
may satisfy the requirements of this section by obtaining a surety bond that
conforms to the requirements of this subsection and submitting the bond to the
commissioner. An owner or operator of a new facility shall submit the bond to
the commissioner at least sixty (60) days before the date on which hazardous
waste is first received for disposal. The bond must be effective before this
initial receipt of hazardous waste. The surety company issuing the bond must,
at a minimum, be:
(A) authorized to do
business in Indiana; and
(B) listed
as acceptable sureties on federal bonds in Circular 570* of the U.S. Department
of the Treasury.
(2) The
wording of the surety bond must be identical to the wording specified in
section 10(b) of this rule.
(3) The
owner or operator who uses a surety bond to satisfy the requirements of this
section shall establish a standby trust fund. Under the terms of the bond, all
payments must be deposited by the surety directly into the standby trust fund
in accordance with instructions from the commissioner. This standby trust fund
must meet the requirements specified in subsection (b) except the following:
(A) An originally signed duplicate of the
trust agreement must be submitted to the commissioner with the surety
bond.
(B) Until the standby trust
fund is funded in accordance with the requirements of this section, the
following are not required by this rule:
(i)
Payments into the trust fund in accordance with subsection (b).
(ii) Updating of Schedule A of the trust
agreement in accordance with section 10(a) of this rule to reflect current
post-closure cost estimates.
(iii)
Annual valuations as required by the trust agreement.
(iv) Notices of nonpayment as required by the
trust agreement.
(4) The bond must guarantee that the owner or
operator shall complete the following, as applicable:
(A) Fund the standby trust fund in an amount
equal to the penal sum of the bond before the beginning of final closure of the
facility.
(B) Fund the standby
trust fund in an amount equal to the penal sum within fifteen (15) days after
an:
(i) administrative order to begin final
closure, issued by the commissioner, becomes final; or
(ii) order to begin final closure is issued
by a United States district court or other court of competent
jurisdiction.
(C) Provide
alternate financial assurance in accordance with this section, and obtain the
commissioner's written approval of the assurance provided within ninety (90)
days after receipt by both the owner or operator and the commissioner of a
notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety
becomes liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond.
(6) The penal sum of the bond must be in an
amount at least equal to the current post-closure cost estimate except as
provided in subsection (h).
(7)
Whenever the current post-closure cost estimate increases to an amount greater
than the penal sum, the owner or operator, within sixty (60) days after the
increase, shall either:
(A) cause the penal
sum to be increased to an amount at least equal to the current post-closure
cost estimate and submit evidence of the increase to the commissioner;
or
(B) obtain other financial
assurance in accordance with this section to cover the increase. Whenever the
current post-closure cost estimate decreases, the penal sum may be reduced to
the amount of the current post-closure cost estimate following written approval
by the commissioner.
(8)
Under the terms of the bond, the surety may cancel the bond by sending notice
of cancellation by certified mail to the owner or operator and to the
commissioner. Cancellation may not occur during the one hundred twenty (120)
days beginning on the date of receipt of the notice of cancellation by both the
owner or operator and the commissioner as evidenced by the return
receipts.
(9) The owner or operator
may cancel the bond if the commissioner has given prior written consent based
on the receipt by the commissioner of evidence of alternate financial assurance
in accordance with this section.
(d) The requirements for a surety bond
guaranteeing performance of post-closure care are as follows:
(1) An owner or operator may satisfy the
requirements of this section by obtaining a surety bond that conforms to the
requirements of this subsection and submitting the bond to the commissioner. An
owner or operator of a new facility shall submit the bond to the commissioner
at least sixty (60) days before the date on which hazardous waste is first
received for disposal. The bond must be effective before this initial receipt
of hazardous waste. The surety company issuing the bond must, at a minimum, be:
(A) authorized to do business in Indiana;
and
(B) listed as acceptable
sureties on federal bonds in Circular 570* of the U.S. Department of the
Treasury.
(2) The wording
of the surety bond must be identical to the wording specified in section 10(c)
of this rule.
(3) The owner or
operator who uses a surety bond to satisfy the requirements of this section
shall establish a standby trust fund. Under the terms of the bond, all payments
must be deposited by the surety directly into the standby trust fund in
accordance with instructions from the commissioner. This standby trust fund
must meet the requirements specified in subsection (b) except the following:
(A) An originally signed duplicate of the
trust agreement must be submitted to the commissioner with the surety
bond.
(B) Unless the standby trust
fund is funded in accordance with the requirements of this section, the
following are not required by this rule:
(i)
Payments into the trust fund in accordance with subsection (b).
(ii) Updating of Schedule A of the trust
agreement in accordance with section 10(a) of this rule to reflect current
post-closure cost estimates.
(iii)
Annual valuations as required by the trust agreement.
(iv) Notices of nonpayment as required by the
trust agreement.
(4) The bond must guarantee that the owner or
operator shall:
(A) perform post-closure care
in accordance with the post-closure plan and other requirements of the permit
for the facility; or
(B) provide
alternate financial assurance in accordance with this section, and obtain the
commissioner's written approval of the assurance provided within ninety (90)
days after receipt by both the owner or operator and the commissioner of a
notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety
becomes liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond. Following a final administrative
determination under IC 13-30-3 or
42 U.S.C.
6928 that the owner or operator has failed to
perform post-closure care in accordance with the approved post-closure plan and
other permit requirements, under the terms of the bond, the surety shall
perform post-closure care in accordance with the post-closure plan and other
permit requirements or shall deposit the amount of the penal sum into the
standby trust fund.
(6) The penal
sum of the bond must be in an amount at least equal to the current post-closure
cost estimate.
(7) Whenever the
current post-closure cost estimate increases to an amount greater than the
penal sum during the operating life of the facility, the owner or operator,
within sixty (60) days after the increase, shall either:
(A) cause the penal sum to be increased to an
amount at least equal to the current post-closure cost estimate and submit
evidence of the increase to the commissioner; or
(B) obtain other financial assurance in
accordance with this section.
Whenever the current post-closure cost estimate decreases
during the operating life of the facility, the penal sum may be reduced to the
amount of the current post-closure cost estimate following written approval by
the commissioner.
(8) During the period of post-closure care,
the commissioner may approve a decrease in the penal sum if the owner or
operator demonstrates to the commissioner that the amount exceeds the remaining
cost of post-closure care.
(9)
Under the terms of the bond, the surety may cancel the bond by sending notice
of cancellation by certified mail to the owner or operator and to the
commissioner. Cancellation may not occur during the one hundred twenty (120)
days beginning on the date of receipt of the notice of cancellation by both the
owner or operator and the commissioner, as evidenced by the return
receipts.
(10) The owner or
operator may cancel the bond if the commissioner has given prior written
consent. The commissioner shall provide written consent when:
(A) the owner or operator substitutes
alternate financial assurance in accordance with this section; or
(B) the commissioner releases the owner or
operator from the requirements of this section in accordance with subsection
(j).
(11) The surety
shall not be liable for deficiencies in the performance of post-closure care by
the owner or operator after the commissioner releases the owner or operator
from the requirements of this section in accordance with subsection
(j).
(e) The requirements
for a post-closure letter-of-credit are as follows:
(1) An owner or operator may satisfy the
requirements of this section by obtaining an irrevocable standby
letter-of-credit that conforms to the requirements of this subsection and
submitting the letter to the commissioner. An owner or operator of a new
facility shall submit the letter-of-credit to the commissioner at least sixty
(60) days before the date on which hazardous waste is first received for
disposal. The letter-of-credit must be effective before this initial receipt of
hazardous waste. The issuing institution must be an entity that has the
authority to issue letters-of-credit and whose letter-of-credit operations are
regulated and examined by a federal or state agency.
(2) The wording of the letter-of-credit must
be identical to the wording specified in section 10(d) of this rule.
(3) The owner or operator who uses a
letter-of-credit to satisfy the requirements of this section shall establish a
standby trust fund. Under the terms of the letter-of-credit, all amounts paid
in accordance with a draft by the commissioner must be deposited by the issuing
institution directly into the standby trust fund in accordance with
instructions from the commissioner. This standby trust fund must meet the
requirements of the trust fund specified in subsection (b) except the
following:
(A) An originally signed duplicate
of the trust agreement must be submitted to the commissioner with the
letter-of-credit.
(B) Unless the
standby trust fund is funded in accordance with the requirements of this
section, the following are not required by this rule:
(i) Payments into the trust fund in
accordance with subsection (b).
(ii) Updating of Schedule A of the trust
agreement in accordance with section 10(a) of this rule to reflect current
post-closure cost estimates.
(iii)
Annual valuations as required by the trust agreement.
(iv) Notices of nonpayment as required by the
trust agreement.
(4) The letter-of-credit must be accompanied
by a letter from the owner or operator referring to the letter-of-credit by
number, issuing institution, and date and provide the following information:
(A) The U.S. EPA identification number, name,
and address of the facility.
(B)
The amount of funds assured for post-closure care of the facility by the
letter-of-credit.
(5) The
letter-of-credit must be irrevocable and issued for a period of at least one
(1) year. The letter-of-credit must provide that the expiration date will be
automatically extended for a period of at least one (1) year unless, at least
one hundred twenty (120) days before the current expiration date, the issuing
institution notifies both the owner or operator and the commissioner by
certified mail of a decision not to extend the expiration date. Under the terms
of the letter-of-credit, the one hundred twenty (120) days will begin on the
date when both the owner or operator and the commissioner have received the
notice as evidenced by the return receipts.
(6) The letter-of-credit must be issued in an
amount at least equal to the current post-closure cost estimate except as
provided in subsection (h).
(7)
Whenever the current post-closure cost estimate increases to an amount greater
than the amount of the credit during the operating life of the facility, the
owner or operator, within sixty (60) days after the increase, shall either:
(A) cause the amount of the credit to be
increased so that it at least equals the current post-closure cost estimate and
submit evidence of the increase to the commissioner; or
(B) obtain other financial assurance in
accordance with this section to cover the increase. Whenever the current
post-closure cost estimate decreases during the operating life of the facility,
the amount of the credit may be reduced to the amount of the current
post-closure cost estimate following written approval by the
commissioner.
(8) During
the period of post-closure care, the commissioner may approve a decrease in the
amount of the letter-of-credit if the owner or operator demonstrates to the
commissioner that the amount exceeds the remaining cost of post-closure
care.
(9) Following a final
administrative determination under IC 13-30-3 or
42 U.S.C.
6928 that the owner or operator has failed to
perform post-closure care in accordance with the approved post-closure plan and
other permit requirements, the commissioner may draw on the
letter-of-credit.
(10) The
commissioner shall draw on the letter-of-credit if the owner or operator does
not establish alternate financial assurance in accordance with this section and
obtain written approval of alternate assurance from the commissioner within
ninety (90) days after receipt by both the owner or operator and the
commissioner of a notice from the issuing institution that the issuing
institution has decided not to extend the letter-of-credit beyond the current
expiration date. The commissioner may delay the drawing if the issuing
institution grants an extension of the term of the credit. During the last
thirty (30) days of any extension, the commissioner shall draw on the
letter-of-credit if the owner or operator has failed to provide alternate
financial assurance in accordance with this section and obtain written approval
of the assurance from the commissioner.
(11) The commissioner shall return the
letter-of-credit to the issuing institution for termination when:
(A) the owner or operator substitutes
alternate financial assurance in accordance with this section; or
(B) the commissioner releases the owner or
operator from the requirements of this section in accordance with subsection
(j).
(f) The
requirements for post-closure insurance are as follows:
(1) An owner or operator may satisfy the
requirements of this section by obtaining post-closure insurance that conforms
to the requirements of this subsection and submitting a certificate of the
insurance to the commissioner. An owner or operator of a new facility shall
submit the certificate of insurance to the commissioner at least sixty (60)
days before the date on which hazardous waste is first received for disposal.
The insurance must be effective before this initial receipt of hazardous waste.
At a minimum, the insurer must be licensed to transact the business of
insurance, or eligible to provide insurance as an excess or surplus lines
insurer, in one (1) or more states.
(2) The wording of the certificate of
insurance must be identical to the wording specified in section 10(e) of this
rule.
(3) The post-closure
insurance policy must be issued for a face amount at least equal to the current
post-closure cost estimate except as provided in subsection (h). As used in
this subsection, "face amount" means the total amount the insurer is obligated
to pay under the policy. Actual payments by the insurer will not change the
face amount, although the insurer's future liability will be lowered by the
amount of the payments. (4) The post-closure insurance policy must guarantee
that funds will be available to provide post-closure care of the facility
whenever the post-closure period begins. The policy must guarantee that once
post-closure care begins, the insurer is responsible for paying out funds, up
to an amount equal to the face amount of the policy, upon the direction of the
commissioner, to the party or parties the commissioner specifies.
(5) An owner or operator or any other person
authorized to perform post-closure care may request reimbursement for
post-closure expenditures by submitting itemized bills to the commissioner.
Within sixty (60) days after receiving bills for post-closure activities, the
commissioner shall instruct the insurer to make reimbursement in amounts the
commissioner specifies in writing, if the commissioner determines that the
post-closure care expenditures are in accordance with the approved post-closure
plan, or otherwise justified. If the commissioner does not instruct the insurer
to make reimbursements, the commissioner shall provide the owner or operator
with a detailed written statement of reasons.
(6) The owner or operator shall maintain the
policy in full force and effect until the commissioner consents to termination
of the policy by the owner or operator in accordance with subdivision (11).
Failure to pay the premium, without substitution of alternate financial
assurance in accordance with this section, constitutes a violation of this
article, warranting a remedy the commissioner deems necessary and is authorized
to make. The violation is deemed to begin upon receipt by the commissioner of a
notice of future cancellation, termination, or failure to renew due to
nonpayment of the premium, rather than upon the date of expiration.
(7) Each policy must contain a provision
allowing assignment of the policy to a successor owner or operator. The
assignment may be conditional upon consent of the insurer provided the consent
is not unreasonably refused.
(8)
The policy must provide that the insurer may not cancel, terminate, or fail to
renew the policy except for failure to pay the premium. The automatic renewal
of the policy must, at a minimum, provide the insured with the option of
renewal at the face amount of the expiring policy. If there is a failure to pay
the premium, the insurer may elect to cancel, terminate, or fail to renew the
policy by sending notice by certified mail to the owner or operator and the
commissioner. Cancellation, termination, or failure to renew may not occur
during the one hundred twenty (120) days beginning with the date of receipt of
the notice by both the commissioner and the owner or operator, as evidenced by
the return receipts. Cancellation, termination, or failure to renew may not
occur and the policy must remain in full force and effect in the event that on
or before the date of expiration:
(A) the
commissioner deems the facility abandoned;
(B) the permit is terminated or revoked or a
new permit is denied;
(C) closure
is ordered by the commissioner or a United States district court or other court
of competent jurisdiction;
(D) the
owner or operator is named as debtor in a voluntary or involuntary bankruptcy
proceeding under
11
U.S.C. 101 et seq.; or
(E) the premium due is paid.
(9) Whenever the current
post-closure cost estimate increases to an amount greater than the face amount
of the policy during the operating life of the facility, the owner or operator,
within sixty (60) days after the increase, shall either:
(A) cause the face amount to be increased to
an amount at least equal to the current post-closure cost estimate and submit
evidence of the increase to the commissioner; or
(B) obtain other financial assurance in
accordance with this section to cover the increase. Whenever the current
post-closure cost estimate decreases during the operating life of the facility,
the face amount may be reduced to the amount of the current post-closure cost
estimate following written approval by the commissioner.
(10) Commencing on the date that liability to
make payments in accordance with the policy accrues, the insurer shall
thereafter annually increase the face amount of the policy. The increase must
be equivalent to the face amount of the policy, less any payments made,
multiplied by an amount equivalent to eighty-five percent (85%) of the most
recent investment rate or of the equivalent coupon-issue yield announced by the
U.S. Department of the Treasury for twenty-six (26) week Treasury
securities.
(11) The commissioner
shall give written consent to the owner or operator that the owner or operator
may terminate the insurance policy when:
(A)
the owner or operator substitutes alternate financial assurance in accordance
with this section; or
(B) the
commissioner releases the owner or operator from the requirements of this
section in accordance with subsection (j).
(g) The requirements for a financial test and
guarantee for post-closure care are as follows:
(1) An owner or operator may satisfy the
requirements of this section by demonstrating that the owner or operator passes
a financial test in accordance with this subsection. To pass the financial
test, the owner or operator shall meet the criteria of either clause (A) or (B)
as follows:
(A) The owner or operator shall
have the following:
(i) Two (2) of the
following three (3) ratios:
(AA) A ratio of
total liabilities to net worth less than two (2.0).
(BB) A ratio of the sum of net income plus
depreciation, depletion, and amortization to total liabilities greater than
one-tenth (0.1).
(CC) A ratio of
current assets to current liabilities greater than one and five-tenths
(1.5).
(ii) Net working
capital and tangible net worth each at least six (6) times the sum of the
current corrective action, closure, and post-closure cost estimates.
(iii) Tangible net worth of at least ten
million dollars ($10,000,000).
(iv)
Assets located in the United States amounting to at least:
(AA) ninety percent (90%) of the total
assets; or
(BB) six (6) times the
sum of the current corrective action, closure, and post-closure cost estimates.
(B) The owner
or operator shall have the following:
(i) A
current rating for the most recent bond issuance of:
(AA) AAA, AA, A, or BBB as issued by Standard
and Poor's; or
(BB) Aaa, Aa, A, or
Baa as issued by Moody's.
(ii) Tangible net worth at least six (6)
times the sum of the current corrective action, closure, and post-closure cost
estimates.
(iii) Tangible net worth
of at least ten million dollars ($10,000,000).
(iv) Assets located in the United States
amounting to at least:
(AA) ninety percent
(90%) of the total assets; or
(BB)
six (6) times the sum of the current corrective action, closure, and
post-closure cost estimates.
(2) As used in subdivision (1), "current
corrective action, closure, and post-closure cost estimates" refers to the cost
estimates required to be shown in paragraphs 1 through 4 of the letter from the
owner's or operator's chief financial officer.
(3) To demonstrate that the owner or operator
meets the financial test, the owner or operator shall submit the following to
the commissioner:
(A) A letter signed by the
owner's or operator's chief financial officer and worded as specified in
section 10(f) of this rule.
(B) A
copy of the independent certified public accountant's report on examination of
the owner's or operator's financial statements for the latest completed fiscal
year.
(C) A special report from the
owner's or operator's independent certified public accountant to the owner or
operator stating the following:
(i) The
independent certified public accountant has compared the data that the letter
from the chief financial officer specifies as having been derived from the
independently audited, year-end financial statements for the latest fiscal year
with the amounts in the financial statements.
(ii) In the comparison in item (i), no
matters came to the attention of the independent certified public accountant
that caused the independent certified public accountant to believe that the
specified data should be adjusted.
(4) An owner or operator of a new facility
shall submit the items specified in subdivision (3) to the commissioner at
least sixty (60) days before the date on which hazardous waste is first
received for disposal.
(5) After the
initial submission of items specified in subdivision (3), the owner or operator
shall send updated information to the commissioner within ninety (90) days
after the close of each succeeding fiscal year. This information must consist
of all three (3) items specified in subdivision (3).
(6) If the owner or operator no longer meets
the requirements of subdivision (1), the owner or operator shall send notice to
the commissioner of intent to establish alternate financial assurance in
accordance with this section. The notice must be sent by certified mail within
ninety (90) days after the end of the fiscal year for which the year-end
financial data reflects that the owner or operator no longer meets the
requirements. The owner or operator shall provide the alternate financial
assurance within one hundred twenty (120) days after the end of the fiscal
year.
(7) The commissioner may,
based on a reasonable belief that the owner or operator may no longer meet the
requirements of subdivision (1), require reports of financial condition at any
time from the owner or operator in addition to those specified in subdivision
(3). If the commissioner finds, on the basis of the reports or other
information, that the owner or operator no longer meets the requirements of
subdivision (1), the owner or operator shall provide alternate financial
assurance in accordance with this section within thirty (30) days after
notification of the finding.
(8)
The commissioner may disallow use of the financial test on the basis of
qualifications in the opinion expressed by the independent certified public
accountant in the report on examination of the owner's or operator's financial
statements. An adverse opinion or a disclaimer of opinion is cause for
disallowance. The commissioner shall evaluate other qualifications on an
individual basis. The owner or operator shall provide alternate financial
assurance in accordance with this section within thirty (30) days after
notification of the disallowance.
(9) During the period of post-closure care,
the commissioner may approve a decrease in the current post-closure cost
estimate for which the financial test demonstrates financial assurance if the
owner or operator demonstrates to the commissioner that the amount of the cost
estimate exceeds the remaining cost of post-closure care.
(10) The owner or operator is no longer
required to submit the items specified in subdivision (3) when:
(A) the owner or operator substitutes
alternate financial assurance in accordance with this section; or
(B) the commissioner releases the owner or
operator from the requirements of this section in accordance with subsection
(j).
(11) An owner or
operator may meet the requirements of this section by obtaining a written
guarantee. The guarantor must be the direct or higher tier parent corporation
of the owner or operator or a firm whose parent corporation is also the parent
corporation of the owner or operator. The guarantor shall meet the requirements
for owners or operators in subdivisions (1) through (9) and shall comply with
the terms of the guarantee. The wording of the guarantee must be identical to
the wording specified in section 10(h) of this rule. The guarantee must
accompany the items sent to the commissioner in accordance with subdivision
(3). One (1) of these items must include the letter from the guarantor's chief
financial officer. If the guarantor's parent corporation is also the parent
corporation of the owner or operator, the letter must describe the value
received in consideration of the guarantee. The terms of the guarantee must
provide the following:
(A) If the owner or
operator fails to perform post-closure care of a facility covered by the
guarantee in accordance with the post-closure plan and other permit
requirements whenever required to do so, the guarantor shall perform
post-closure care in accordance with the post-closure plan and other permit
requirements or establish a trust fund in accordance with subsection (b) in the
name of the owner or operator.
(B)
The guarantee must remain in force unless the guarantor sends notice of
cancellation by certified mail to the owner or operator and to the
commissioner. Cancellation may not occur during the one hundred twenty (120)
days beginning on the date of receipt of the notice of cancellation by both the
owner or operator and the commissioner as evidenced by the return
receipts.
(C) The guarantor shall
provide alternate financial assurance in the name of the owner or operator if
the owner or operator fails to:
(i) provide
alternate financial assurance in accordance with this section; and
(ii) obtain the written approval of alternate
assurance from the commissioner within ninety (90) days after receipt by both
the owner or operator and the commissioner of a notice of cancellation of the
guarantee from the guarantor.
(h) An owner or operator may satisfy the
requirements of this section by establishing more than one (1) financial
mechanism per facility. These mechanisms are limited to trust funds, surety
bonds guaranteeing payment into a trust fund, letters-of-credit, and insurance.
The mechanisms must be established in accordance with subsections (b) through
(c) and (e) through (f), respectively, except that it is the combination of
mechanisms rather than the single mechanism, that must provide financial
assurance for an amount at least equal to the current post-closure cost
estimate. If an owner or operator uses a trust fund in combination with a
surety bond or a letter-of-credit, the owner or operator may use the trust fund
as the standby trust fund for the other mechanisms. A single standby trust fund
may be established for two (2) or more mechanisms. The commissioner may use any
or all of the mechanisms to provide for post-closure care of the
facility.
(i) An owner or operator
may use a financial assurance mechanism specified in this section to meet the
requirements of this section for more than one (1) facility. Evidence of
financial assurance submitted to the commissioner must include a list showing,
for each facility, the U.S. EPA identification number, name, address, and the
amount of funds for post-closure care assured by the mechanism. The amount of
funds available through the mechanism must be no less than the sum of funds
that would be available if a separate mechanism had been established and
maintained for each facility. In directing funds available through the
mechanism for post-closure care of any of the facilities covered by the
mechanism, the commissioner may direct only the amount of funds designated for
that facility unless the owner or operator agrees to the use of additional
funds available under the mechanism.
(j) Within sixty (60) days after receiving
certification from the owner or operator and an independent registered
professional engineer that the post-closure care period has been completed for
a hazardous waste disposal unit in accordance with the approved plan, the
commissioner shall notify the owner or operator that the owner or operator is
no longer required to maintain financial assurance for post-closure care of the
unit, unless the commissioner has reason to believe that post-closure care has
not been in accordance with the approved post-closure plan. The commissioner
shall provide the owner or operator with a detailed written statement of any
reason that post-closure care has not been in accordance with the approved
post-closure plan.
*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.