Current through Register Vol. 43, No. 52, December 26, 2024
In
K.A.R.
28-29-2101 through
K.A.R.
28-29-2113, "facility" shall mean a solid
waste disposal area, a solid waste processing facility, or both.
(a) Evidence of financial assurance. The
owner or operator of each facility shall submit to the department evidence of
financial assurance for the facility for the cost of closure, postclosure, or
both, as specified in
K.S.A.
65-3407, and amendments thereto. The
financial assurance shall meet the following requirements:
(1) Be continuous during the active life of
the facility and the required postclosure care period;
(2) be in an amount that is equal to or
greater than the accepted or revised amount as specified in subsection (e) of
this regulation;
(3) be available
when needed; and
(4) be legally
enforceable.
(b)
Financial assurance methods.
(1) Allowable
financial assurance methods shall consist of the following:
(A) A funded trust fund, as specified in
K.A.R. 28-29-2103;
(B) a surety
bond guaranteeing payment, as specified in K.A.R. 28-29-2104;
(C) a surety bond guaranteeing performance,
as specified in K.A.R. 28-29-2105;
(D) an irrevocable letter of credit, as
specified in K.A.R. 28-29-2106;
(E) an insurance policy, as specified in
K.A.R. 28-29-2107;
(F) a corporate
financial test, as specified in K.A.R. 28-29-2108;
(G) a corporate financial guarantee, as
specified in K.A.R. 28-29-2109;
(H) a local government financial test, as
specified in K.A.R. 28-29-2110;
(I) a local government guarantee, as
specified in K.A.R. 28-29-2111;
(J) use of ad valorem taxing authority for a
local government subdivision of the state that owns or operates a solid waste
facility other than a municipal solid waste landfill, as specified in K.A.R.
28-29-2112; and
(K) the following
simplified financial instruments, as specified in K.A.R. 28-29-2113:
(i) A simplified permit bond for facilities
with a closure cost estimate of $100,000 or less;
(ii) a simplified irrevocable letter of
credit for facilities with a closure cost estimate of $100,000 or less; and
(iii) an assigned certificate of
deposit for facilities with a closure cost estimate of $25,000 or less.
(2) Any
owner or operator may use a combination of instruments or methods as specified
in these regulations, except that a method using a financial instrument
guaranteeing performance shall not be used in combination with an instrument
guaranteeing payment. Each method used in combination shall satisfy the
requirements specified in these financial assurance regulations for its use.
(3) Any board of county
commissioners that has established a dedicated fee fund pursuant to
K.S.A.
65-3415f, and amendments thereto, may reduce
the amount of financial assurance demonstrated by any other allowable method by
the current balance accumulated in the dedicated fee fund at the time that the
evidence of financial assurance is submitted.
(4) If the financial assurance is a purchased
financial instrument, it shall be purchased from a financial, insurance, or
surety institution meeting the quality and reliability standards suitable to
institutions of that type and the standards specified in these financial
assurance regulations.
(c) Calculation of financial assurance. The
owner or operator of each facility shall meet the following requirements when
calculating the amount of financial assurance for the current estimated cost to
provide for closure, postclosure, or both.
(1) The owner or operator shall meet the
following requirements to determine the area or capacity to be included in the
calculation of estimated cost.
(A) For each
solid waste processing facility, the amount of closure financial assurance
shall be calculated as the cost of removing and disposing of the greatest
volume of waste allowed by terms and conditions of the permit, and all other
costs relevant to certification of final closure, including certification.
(B) For each solid waste disposal
area, the amount of closure financial assurance shall be calculated as the cost
to complete final closure of the largest area to lack final cover at any one
time before the next annual permit renewal. The calculated cost shall include
the cost to complete all closure activities in a manner consistent with the
approved facility closure plan.
(C) For each solid waste disposal area, the
amount of postclosure financial assurance shall be calculated as the cost to be
incurred for the largest area to have waste in place before the next annual
permit renewal. The calculated cost shall include the cost to conduct the
following, in a manner consistent with the approved facility postclosure plan,
during the postclosure period of 30 years and any extensions of the postclosure
period required by the secretary:
(i) Care
and maintenance of the area, including all appurtenances; and
(ii) all required environmental monitoring.
(2) The
owner or operator shall calculate the amount of financial assurance required by
applying third-party costs to the activities listed in the closure plan and
postclosure plan. The resulting amount shall not be discounted, nor shall any
offset for the sale of recoverable materials be subtracted. Third-party costs
shall be determined from one or more of the following sources:
(A) Representative costs supplied by the
department;
(B) actual invoices
paid by the owner or operator for the same or similar work;
(C) written bids from professional
contractors having no other financial interest in the facility or its use; or
(D) authoritative costing tables
issued by publishers recognized for their research into the costs of the
activities to be priced.
(3) If the calculated amount does not include
a specific allowance to pay for contingent events, the owner or operator shall
add an amount equal to 10% of the total cost for the purpose of determining the
amount of financial assurance required.
(4) The owner or operator shall submit the
cost estimates on worksheets provided by the department or on other forms that
contain the same information.
(d) When submissions are required. The owner
or operator of each facility shall submit evidence of financial assurance to
the department at the following times:
(1)
Before the facility permit is issued by the secretary, including transferred
permits;
(2) before a permit
modification is issued by the secretary;
(3) annually during the active life of the
facility, on or before the permit renewal date; and
(4) annually during the required period of
postclosure, on or before the permit renewal date that was effective during the
active life of the facility.
(e) Evaluation of amount of financial
assurance.
(1) Upon receipt of the closure
cost estimate, postclosure cost estimate, or both, from the owner or operator,
the estimate or estimates shall be evaluated by the department to determine if
the estimated amount of financial assurance is acceptable, according to the
following criteria:
(A) The activities
planned meet the requirements of the Kansas solid waste statutes and
regulations, comply with all permit conditions, and are protective of public
health and safety and the environment; and
(B) the method of estimating costs for the
planned activities meets the requirements of this regulation.
(2) Revisions shall be made by the
department in accordance with the evaluation, if the cost estimate factors are
not acceptable.
(f)
Annual updates to financial assurance. The owner or operator shall update the
financial assurance amount, on or before the annual renewal date of each permit
during the active life of the facility and annually during the required period
of postclosure care, by recalculating the cost of closure, postclosure care, or
both, using current dollars, or by the addition of an inflation factor to the
amount accepted by the department for the prior year.
(1) If a change to any of the following has
occurred that will change the cost of closure, postclosure, or both, the owner
or operator shall recalculate the affected cost or costs, consistent with the
change:
(A) The closure plan, as submitted or
as approved;
(B) the postclosure
plan, as submitted or as approved; or
(C) the conditions at the facility.
(2) If the inflation
factor is used, the financial assurance instrument or other method of
demonstrating financial assurance shall be adjusted to the updated amount
according to the following formula:
IPDy
-------- x FAy - 1 = FA
IPDy - 1
where:
IPDy represents the current annual implicit price deflator for
the gross domestic product;
IPDy - 1 represents the previous year's implicit price deflator
for the gross domestic product;
FAy - 1 represents the previous year's approved estimate of
closure or postclosure, or both; and
FA represents the current estimated cost of closure or
postclosure, or both.
(g) Failure of the financial assurance
method, or an inadequate amount of financial assurance. Each owner or operator
of a facility who obtains information that a financial assurance instrument or
other method has failed to meet the standards established by these financial
assurance regulations for its use, or that the amount of financial assurance
provided has become inadequate for reasons other than general annual price
inflation, shall provide alternate or increased financial assurance of the type
and within the time periods specified in these financial assurance regulations,
but not later than 90 days after obtaining the information.
(h) Release from the requirement to provide
financial assurance. Each owner or operator shall be released from the
requirement to provide financial assurance for a facility for closure or
postclosure care, or both, when the owner or operator is released by the
department from further obligation to perform closure activities, postclosure
activities, or both, at the facility.
(i) Exception for certain closed municipal
solid waste landfills. The financial assurance requirements of subsection (a)
of this regulation shall not apply to closed municipal solid waste landfills
that are exempted from K.A.R. 28-29-101 through K.A.R. 28-29-120 according to
the closure dates specified in K.A.R. 28-29-100.
(j) Exception to the requirement for
postclosure financial assurance for facilities other than municipal solid waste
landfills. Postclosure financial assurance shall not be required by the
secretary for a facility that is not a municipal solid waste landfill unless
the secretary determines that recurring environmental monitoring is required
during the entire postclosure period.
(k) Exception to the closure plan pricing
requirements for waste tire permittees. No waste tire processing facility,
waste tire collection center, mobile waste tire processor, or waste tire
transporter permittee shall be subject to the closure plan pricing requirements
of subsections (c) and (f) of this regulation. The permittee shall determine
the amount of financial assurance according to the following criteria:
(1) Waste tire processing facilities and
waste tire collection centers. The amount of financial assurance shall
correspond to the closure cost estimate, as specified in K.A.R. 28-29-30.
(2) Mobile waste tire processors.
The amount of financial assurance shall be $1,000.00.
(3) Waste tire transporters. The amount of
financial assurance shall correspond to the average number of passenger tire
equivalents (PTEs) transported per month, according to the following schedule:
PTEs transported Financial assurance
0 through 1,000 ........ $1,000.00
1,001 through 10,000 ... $5,000.00
more than 10,000 .......$10,000.00
