Current through Register Vol. 43, No. 52, December 26, 2024
(a) Funded trust
fund. Any owner or operator of a solid waste disposal area or processing
facility may satisfy the requirements of K.A.R. 28-29-2101 or K.A.R.
28-29-2102, or both, by establishing a trust fund that conforms to the
requirements of this regulation and by submitting a copy of the trust
agreement, with an original signature, to the department.
(1) Each owner or operator of a new facility
shall submit to the department a copy of the trust agreement, with an original
signature, for closure or postclosure, or both, before the permit is issued by
the department.
(2) Each owner or
operator required to provide financial assurance for a corrective action plan
shall submit to the department a copy of the trust agreement, with an original
signature, within the times specified in K.A.R. 28-29-2102(d).
(3) The trustee financial institution shall
meet the following criteria:
(A) Be unrelated
to the owner or operator;
(B) have
the authority to act as trustee for the facility in the state of Kansas; and
(C) be a trust operation regulated
and examined by a state or federal agency.
(b) Form of the trust agreement.
(1) The wording of the trust agreement shall
be identical to the wording in the document provided by the department.
(2) The trust agreement shall
establish a trust account, referred to in this regulation as "the fund," for
the receipt of annual payments into the fund and receipt of the earnings on the
accumulated amount.
(3) Each owner
or operator shall update schedule A of the trust agreement within 60 days
following a change in the amount of the current closure, postclosure, or
corrective action cost estimate covered by the agreement.
(c) Payments into the fund for closure and
postclosure. The owner or operator shall annually make payments into the fund
for closure or postclosure, or both, over the estimated life of the facility as
approved by the department. The approved facility life shall be referred to in
this regulation as the "pay-in period." The pay-in period shall be changed each
time a new facility life is determined by the owner or operator and approved by
the department. The pay-in period shall not exceed 30 years from the date a new
facility is permitted or the date these financial assurance regulations become
effective, whichever is later. Payments into the fund for closure or
postclosure, or both, shall be calculated as follows:
(1) The first payment into the fund for a new
facility shall be made before the permit is issued by the department. The first
payment shall be equal to the current, approved estimate of closure or
postclosure costs, or both, divided by the number of years in the pay-in
period.
(2) The owner or operator
shall make subsequent payments on or before the due date for each annual permit
renewal. The amount of each subsequent payment shall be calculated by the
following formula:
(CE-CV) / Y = P
where:
CE represents the current cost estimate for closure or
postclosure, or both;
CV represents the current value of the fund. The current value
of the fund shall be the current tax cost of the fund as reported in the
trustee report unless market value is lower, in which case the lower value
shall be used in the formula;
Y represents the number of years remaining in the pay-in
period; and
P represents the amount of the required payment.
(3) Any owner or
operator may accelerate payments into the fund or may deposit the full amount
of the current estimate for closure or postclosure costs, or both, at the time
the fund is established. After making the accelerated or full payments, the
owner or operator shall maintain the fund at least in the amount it would have
been if initial and annual payments had been made according to the requirements
in paragraphs (c)(1) and (c)(2) of this regulation.
(4) If the owner or operator establishes a
trust fund for closure, postclosure, or both, after having used another
allowable method of providing financial assurance, the first payment into the
fund shall be at least the amount that the fund would have contained if the
trust fund had been used as the first method.
(5) After the pay-in period is complete,
whenever the current approved cost estimate for closure or postclosure, or
both, is changed, the owner or operator shall compare the new estimate with the
trustee's most recent report of the current value of the fund and, if the fund
is deficient, shall deposit the amount of deficiency on or before the date
required by K.A.R. 28-29-2101(i).
(6) After the pay-in period is complete, if
the value of the fund exceeds the current approved estimate of closure or
postclosure costs, or both, or if the owner or operator substitutes another
approved method of providing financial assurance, the owner or operator may
submit a request to the department for return of the excess amount. The request
shall be evaluated by the department. The requested amount shall be approved,
changed, or denied. The trustee shall make payment from the fund in the amount
determined by the department's evaluation.
(d) Reimbursement from the closure or
postclosure fund. After beginning final closure, and annually during the
postclosure period, the owner or operator or another authorized person may
request reimbursement for the costs incurred in carrying out the actions
required by the approved closure or postclosure plan, or both. The
reimbursement request shall include documentation for the costs to be
reimbursed from the fund. The request shall be evaluated by the department.
Reimbursement may be authorized by the department to the extent that, after the
reimbursement is issued by the trustee, the fund still contains the amount
required to complete closure or postclosure, or both. The trustee shall make
payment from the fund in the amount determined by the department's evaluation.
(e) Payments into the fund for
corrective action. Each owner or operator shall make payments into the fund for
corrective action annually during the first half of the approved corrective
action period. The first half of the corrective action period shall be the
"pay-in period." The pay-in period shall be changed at any time that a new
corrective action period is determined by the owner or operator and approved by
the department. The pay-in period shall not exceed seven years beginning on the
date these financial assurance regulations become effective, or 120 days after
the date determined by K.A.R. 28-29-2102(d), whichever is later. Payments into
the fund for corrective action shall be calculated as follows:
(1) The first payment into the fund shall be
at least in the amount of half of the approved estimate of the total cost of
corrective action for the entire corrective action period, divided by the
number of years in the pay-in period.
(2) The amount of each subsequent payment
shall be determined by the following formula:
(RB -CV) / Y = P
where:
RB represents the required balance, defined as the total amount
of corrective action cost estimated to be incurred in the last half of the
corrective action period;
CV represents the current value of the trust fund. The current
value of the fund shall be the current tax cost of the fund as reported in the
trustee report unless market value is lower, in which case market value shall
be used in the formula;
Y represents the number of years remaining in the pay-in
period; and
P represents the amount of the required payment.
(3) Any owner or operator may
accelerate payments into the fund or may deposit the full amount of the
required balance at the time the fund is established. After making the
accelerated or full payments, the owner or operator shall maintain the fund at
least in the amount it would have been if initial and annual payments had been
made according to the requirements in paragraphs (e)(1) and (e)(2) of this
regulation.
(4) If the owner or
operator establishes a corrective action trust fund after having used another
allowable method of providing financial assurance, the first payment into the
fund shall be at least the amount that the fund would have contained if the
trust fund had been used as the first method.
(5) After the pay-in period is complete,
whenever the current estimated cost of corrective action for the remaining
corrective action period exceeds the amount of the current value of the fund,
the owner or operator shall deposit the deficiency on or before the deadline
specified in K.A.R. 28-29-2102 (i).
(f) Reimbursement from the corrective action
fund. After the pay-in period is complete or after the required balance of the
fund is reached, the owner or operator or another authorized person may request
reimbursement for the costs incurred in carrying out the actions required by
the corrective action plan. The reimbursement request shall include
documentation of the costs to be reimbursed from the fund. The request shall be
evaluated by the department. Reimbursement may be authorized by the department
to the extent that, after the reimbursement is issued by the trustee, the fund
still contains the amount required to complete the corrective action plan. The
trustee shall make payment from the fund in the amount determined by the
department's evaluation.
(g)
Termination of the trust agreement. Any owner or operator may request
termination of the trust agreement and return of any monies remaining in the
fund if any of the following conditions is met:
(1) The owner or operator substitutes an
alternative method of financial assurance as specified in K.A.R. 28-29-2101(b)
and obtains written approval for its use from the department.
(2) The owner or operator is released by the
department from further obligation to provide financial assurance for closure,
postclosure, corrective action, or any combination of these, at the permitted
facility.
(3) The owner or
operator completes corrective action required by order of any court of
competent jurisdiction and is released from further obligation by the court at
the permitted facility.
(h) The provisions of this regulation shall
apply on and after February 24, 2000.
