Current through Register Vol. 56, No. 6, March 18, 2024
(a) This section shall govern the following activities:
1. Closure and post-closure care at all sanitary landfills;
2. Preparation of a Closure and Post-Closure Plan for all sanitary landfills;
3. Establishment and use of escrow accounts required pursuant to the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seq., and the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., for every sanitary landfill operating on or after January 1, 1982;
4. Establishment and use of escrow accounts required pursuant to N.J.S.A. 13:1E-125.6 for legacy landfills and closed sanitary landfill facilities; and
5. Acceptance of materials by legacy landfills or closed sanitary landfill facilities pursuant to N.J.S.A. 13:1E-125.1 et seq.
(b) The following words and terms, when used in this section, shall have the following meanings. Where words and terms are used that are not defined in this subsection, the definitions of those words and terms will be the same as the definitions found in N.J.A.C. 7:26-1.4:
"Accredited financial institution" means any commercial bank, savings bank or savings and loan association with its principal office located in the State of New Jersey, and insured by the Savings Association Insurance Fund (SAIF) or the Federal Deposit Insurance Corporation (FDIC); or limited purpose trust company that meets the requirements set forth in 17:9A-28 and 17:9A-31 with its principal office located in the State of New Jersey maintaining assets in excess of $ 50,000,000.
"Closed sanitary landfill facility" means a sanitary landfill, or a portion of a sanitary landfill, for which performance is complete with respect to all activities associated with the design, installation, purchase, or construction of all measures, structures, or equipment required by the Department, pursuant to law, in order to prevent, minimize, or monitor pollution or health hazards resulting from a sanitary landfill subsequent to the termination of operations at any portion thereof, including, but not necessarily limited to, the placement of earthen or vegetative cover, and the installation of methane gas vents, monitors, and air pollution control devices and leachate monitoring wells or collection systems at the site of any sanitary landfill.
"Closure" or "closure costs" means the construction and implementation of all environmental safeguards required by law or by the sanitary landfill's approved Closure and Post-Closure Plan and the facility's approved engineering design subsequent to the termination of operations at any portion of that facility, and the cost thereof. Closure or closure costs may include, but is not limited to, all activities and costs associated with the design, purchase, construction, and maintenance of all items in order to prevent, minimize, or monitor pollution or health hazards resulting from sanitary landfills subsequent to the termination of operations at any portion thereof, including, but not necessarily limited to, the costs of placement or regrading of fill material, placement of acceptable cover, the installation of methane gas monitoring, venting, or evacuation systems, the installation and monitoring of wells or leachate collection, and control systems at the site or in the vicinity of any sanitary landfill.
"Closure Act escrow account" means an interest-bearing account with an accredited financial institution as escrow agent, in which funds shall be deposited by the owner or operator of every sanitary landfill pursuant to the Sanitary Landfill Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seq., and this section. This account shall be based upon a standard escrow agreement provided by the Department for execution by and between the escrow agent and the owner or operator of the sanitary landfill. There shall be only one Closure Act escrow account for each sanitary landfill, unless otherwise authorized by the Department.
"Closure period" means, unless otherwise specified, the period beginning after the landfill or a portion thereof has ceased to accept waste or the period as determined by the Department.
"Legacy landfill escrow account" means an interest-bearing account with an accredited financial institution as escrow agent, in which funds shall be deposited by the owner or operator of a legacy landfill or closed sanitary landfill facility pursuant to N.J.S.A. 13:1E-125.6, and this section. The account shall be based upon an escrow agreement provided by the Department for execution by and between the escrow agent and the owner or operator of the legacy landfill or closed sanitary landfill facility.
"Liquidity" means that availability of funds for drawdowns consistent with a landfill's approved closure plan, or, if there is no approved closure plan, consistent with the Department's closure strategy for the landfill facility.
"Material acceptance protocol" means a protocol setting forth the types, quantities, uses, and specifications of material proposed for acceptance subsequent to termination of solid waste disposal operations at a sanitary landfill, or any portion thereof, and the procedures to be implemented by the owner or operator to accept and manage such material.
"Owner or operator" means and includes, in addition to the usual meanings thereof, every owner of record of any interest in land where on a sanitary landfill facility is or has been located, and any person, partnership or corporation which owns a majority interest in any other corporation which is the owner or operator of any sanitary landfill.
"Post-closure care" means those activities necessary to maintain and monitor a sanitary landfill in accordance with an approved engineering design and applicable laws and regulations after the landfill has been properly closed.
(c) General closure and post-closure care requirements are as follows:
1. Every owner or operator of a sanitary landfill shall be jointly and severally liable for the proper operation and closure of the sanitary landfill, as required by law, and for any damages, no matter by whom sustained, proximately resulting from the operations and closure.
2. The owner or operator of a sanitary landfill shall notify the Department in writing of his intention to suspend or terminate operations at that landfill. The Department shall receive notice at least 10 days prior to the date of suspension of operations, which notice shall include the duration of the suspension, and shall receive notice at least 180 days prior to the date of termination of operations.
3. No person shall contract to sell any land that has been utilized as a sanitary landfill at any time unless the contract of sale for the land describes such use and the period of time that the land was so utilized, as required in (c)8 below. Upon written request, any prospective purchaser of such land may obtain from the Department a history of the compliance by the landfill with all applicable statutes, rules, and regulations administered by the Department.
4. The owner or operator of a sanitary landfill shall hire a New Jersey licensed professional engineer to oversee closure and any other activities at the sanitary landfill.
5. During the closure period, the owner or operator shall submit quarterly reports in a format approved by the Department of closure and other activities performed at the sanitary landfill. Quarterly reports shall be certified by a New Jersey licensed professional engineer, who shall certify that all wastes and materials accepted at the site for any purpose were weighed, sampled, and tested in accordance with the approved material acceptance protocol required pursuant to (e)4 below, and all provisions and prohibitions of any administrative consent order, closure or post-closure plan, permit, or approval were complied with during that quarter. The report shall be submitted within 15 days after the end of each calendar quarter.
6. Within six months after closure of the sanitary landfill, the owner or operator of the sanitary landfill shall obtain and submit to the Department an "as-built" certification by a New Jersey licensed professional engineer, certifying that each provision of the Closure and Post-Closure Plan has been implemented as designed and approved, subject to the following requirements:
i. A New Jersey licensed professional engineer shall certify, in writing, to the Department that he or she has supervised the construction of each major phase of the sanitary landfill's closure. He or she shall further certify that each phase has been prepared and constructed in accordance with the closure design approved by the Department. The certification shall include as-built drawings;
ii. The New Jersey licensed professional engineer shall certify that the materials utilized in the closure of the sanitary landfill are in conformance with and meet the specifications of the approved closure design and materials accepted at the site for any purpose were weighed, sampled, and tested according to a protocol approved in advance by the Department;
iii. There shall be no deviation from the approved closure design without the prior written approval of the design engineer and, at a minimum, prior verbal approval by the Department.
7. All certifications required by (c)5 and 6 above shall bear the raised seal of the New Jersey licensed professional engineer, his or her signature, and the date of certification. The certification shall include the following statement: "I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document and all attachments and that, based on my inquiry of those individuals under my supervision, I believe the submitted information is true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. I understand that, in addition to criminal penalties, I may be liable for civil administrative penalty pursuant to N.J.A.C. 7:26-5 and that submitting false information may be grounds for denial, revocation or termination of any solid waste facility permit or vehicle registration for which I may be seeking approval or now hold."
8. Upon closure of the sanitary landfill, a detailed description of the landfill shall be recorded, along with the deed, with the appropriate county recording office. The description shall include the general types, locations, and depths of wastes on the site, the depth and type of cover material, the dates the landfill was in use and all such other information as may be of interest to potential landowners, and shall remain in the record in perpetuity. The deed shall also provide notice that any future disruption of the closed landfill shall require prior approval from the Department in accordance with N.J.A.C. 7:26-2A.8(j).
9. The post-closure care period shall continue for 30 years after the date of completing closure of the sanitary landfill or as the following conditions apply:
i. The Department may reduce the post-closure care period to less than 30 years when it has been adequately demonstrated that the reduced period is sufficient to protect human health and the environment;
ii. Prior to the time that the post-closure care period is due to expire, the Department may extend the post-closure care period upon a finding that such extended period is necessary to protect human health and/or the environment; and
iii. Any aggrieved person may petition the Department for an extension or reduction of the post-closure care period, based on good cause.
10. If the Department intends to reduce or extend the post-closure care period to less than or more than 30 years, public notice of that intention shall be provided.
11. During the post-closure care period, the owner or operator of a closed sanitary landfill facility shall submit post-closure evaluation reports to the Department as follows:
i. The owner or operator shall submit a post-closure evaluation report:
(1) Every 10 years beginning on or before the date that is 10 years after the date of completion of closure;
(2) For a closed sanitary landfill facility that as of September 5, 2017 is within 10 years of completion of the post-closure care period as defined in (c)9 above or the Closure and Post-Closure Plan Approval, on or before September 5, 2018;
(3) For a closed sanitary landfill facility that is in its post-closure care period on September 5, 2017, but is not subject to (c)11i(2) above, on or before the next 10-year anniversary of completion of closure. For example, if closure was complete on December 5, 1997, the first post-closure evaluation report is due on or before December 5, 2017; and
(4) At least two years, but no earlier than three years, prior to the scheduled end of the facility's initial 30-year post-closure period and at least two years, but no earlier than three years, prior to the scheduled end of each post-closure period extension. If the owner or operator does not timely submit a complete post-closure evaluation report during this time period, the post-closure period shall be extended until no less than two years from the Department's receipt of a complete report.
ii. If the report proposes modifications to the Closure and Post-Closure Plan, the report shall be accompanied by a request for a modification to the Closure and Post-Closure Plan Approval, in accordance with (d)6 below; and
iii. A post-closure evaluation report shall be certified by a New Jersey licensed professional engineer and shall include, but not be limited to:
(1) A summary of the post-closure activities undertaken during the previous 10 years;
(2) A certification that the sanitary landfill is being maintained and is performing in compliance with the requirements of the approved Closure and Post-Closure Plan with any exceptions noted and discussed;
(3) An analysis of all monitoring data for trends and compliance with the closure and post-closure care requirements and the need for modifications. Monitoring data shall include, but need not be limited to, groundwater data, leachate quality and quantity data, landfill gas quality and quantity data, slope and settlement data, inspection report data, and any other applicable post-closure data;
(4) An evaluation of extrapolated trend data for the monitored parameters required in (c)11iii(3) above over the remaining post-closure period and a recommendation for the need to extend or reduce the post-closure care period based on the following factors:
(A) The potential impact of uncontrolled leachate on groundwater and surface water quality and other receptors, such as wetlands;
(B) The effects of uncontrolled leachate on the chemical, physical, and structural containment systems that prevent its release;
(C) Groundwater monitoring results as compared to applicable standards of N.J.A.C. 7:9C, Ground Water Quality Standards;
(D) The status of any required groundwater corrective action;
(E) The potential impact of uncontrolled landfill gas on the subsurface migration of gases, odors, and the integrity of the final cover;
(F) The geotechnical stability (slope stability and surface settlement), vegetative stability, and integrity of the final cover;
(G) The integrity and function of run-on and run-off controls;
(H) Existing and potential future land use of the site and its surroundings; and
(I) Any other environmental and human health factors specific to the sanitary landfill; and
(5) Any other information the Department determines is necessary to determine compliance with closure and post-closure care requirements, the need for modification of those requirements, or whether the post-closure care period should be extended or reduced based upon the need to protect human health and the environment.
(d) General requirements for a Closure and Post-Closure Plan are as follows:
1. A Closure and Post-Closure Plan shall consist of both a Closure and Post-Closure Care Plan and a Closure and Post-Closure Financial Plan in accordance with the provisions of (e), (f), and (h) below, except as otherwise authorized by the Department.
2. No person shall:
i. Construct or operate a sanitary landfill without an approval from the Department of a Closure and Post-Closure Plan; or
ii. Undertake any closure activity, construct any site improvements, or accept, for any reason, solid waste, recyclable material, contaminated soil, cover material, wastewater treatment residual material, dredge material, construction debris, or any other material, at a sanitary landfill that is no longer authorized to accept solid waste for disposal, except as authorized by a disruption approval, approved Closure and Post-Closure Plan, or approved modified Closure and Post-Closure Plan.
3. A Closure and Post-Closure Plan shall be submitted to the Department for approval in accordance with the following schedule:
i. Upon application for a solid waste facility permit;
ii. For sanitary landfills that ceased accepting waste for disposal during calendar years 1982 or 1983, no later than September 6, 1983;
iii. For sanitary landfills that were in operation in 1983, continued to accept waste for disposal after 1983, and accepted in excess of 100,000 cubic yards of waste per year, as delivered, no later than December 6, 1983;
iv. For sanitary landfills that were in operation in 1983, continued to accept waste for disposal after 1983, and are not covered under (d)3iii above, no later than June 6, 1984;
v. For legacy landfills, prior to undertaking any closure activity or accepting any material at the sanitary landfill for any reason; and
vi. For closed sanitary landfill facilities, prior to accepting any material at the sanitary landfill for any reason, if the Department has not already authorized the acceptance.
4. No owner or operator shall submit a Closure and Post-Closure Care Plan for approval which includes any unauthorized expansion of the proposed or actual sanitary landfill operation.
5. Any owner or operator who fails to submit the Closure and Post-Closure Plan, as required by this subsection, shall be subject to denial, revocation or suspension of the registration of the sanitary landfill and other regulatory or legal actions which the Department is allowed to institute by law.
6. The owner or operator shall apply for and obtain Departmental approval to modify the Closure and Post-Closure Plan prior to undertaking any activity that is not included in the approved Closure and Post-Closure Plan, or changing any portion of the approved Closure and Post-Closure Plan. Activities or changes that require prior Department approval include, but are not limited to, changes in the following:
i. Design or operation of any environmental control system;
ii. Design or operation of any monitoring system;
iii. Frequency, methods, or parameters of inspections or monitoring requirements;
iv. Material acceptance protocol;
v. Schedule for completion of closure activities;
vi. Reporting requirements;
vii. Financial plan;
viii. Post-closure period;
ix. Site plan, site usage, or construction of any improvements on the sanitary landfill property; and
x. Ownership or operational control.
7. For the purposes of this section, the transfer of a controlling interest in the stock or assets of any entity owning or operating a sanitary landfill shall constitute a change in the ownership or operational control of the facility.
8. The Department may require the modification of an engineering design and a Closure and Post-Closure Plan at any time it is deemed necessary during the sanitary landfill's operation, closure, or post-closure care period.
9. Any sanitary landfill that is closed under the provisions of this section shall be maintained in accordance with the approved Closure and Post-Closure Plan and must remain in compliance with all regulations of this subchapter.
10. A copy of the approved Closure and Post-Closure Plan shall be kept on file at the sanitary landfill during the course of the sanitary landfill's operation and, after closure, shall be filed with the municipal clerk.
(e) The Closure and Post-Closure Care Plan shall include the items in (e)1 through 5 below; however, the Department may require additional closure and post-closure care measures or waive one or more of the requirements of (e)1 through 5 below, based upon the Department's evaluation of specific health and/or environmental circumstances.
1. The signature and seal of a New Jersey licensed professional engineer certifying that the engineering drawings, specifications, and reports applicable to this Closure and Post-Closure Plan comply with the applicable rules of the Department;
2. An individual, trust, firm, joint stock company, business concern, responsible corporate official, or corporation, including, but not limited to, a partnership, limited liability company, or association, that undertakes the closure of a legacy landfill, or the owner or operator of a closed sanitary landfill facility, who proposes to accept for any reason, solid waste, recyclable material, contaminated soil, cover material, wastewater treatment residual material, dredge material, construction debris, or any other waste or material shall submit the following:
i. A copy of the application and the preliminary or final site plan approval issued by the municipality for the project pursuant to the provisions of the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq. If preliminary site plan approval is submitted with the Closure and Post-Closure Plan, final municipal site plan approval shall be submitted to the Department prior to any closure activity or acceptance of any material at the sanitary landfill; or
ii. Written acknowledgement signed by an administrative or judicial official of competent jurisdiction from the municipality where the sanitary landfill is located stating that site plan approval is not required for the proposed activity;
3. An assessment of the sanitary landfill and its surroundings to determine the environmental controls, maintenance, and monitoring necessary for closure and post-closure care. When existing documentation is not available to conduct the assessment of the sanitary landfill and its surroundings, the owner or operator shall conduct an investigation sufficient to obtain the information required to complete the assessment. The owner or operator shall apply to the Department for Sanitary Landfill Disruption Approval(s) to conduct an adequate assessment, as required by N.J.A.C. 7:26-2A.8(j). Information needed for the assessment shall include, but need not be limited to:
i. Topography, geology, and hydrogeology of the area;
ii. Surrounding land use;
iii. Identification of nearby human and ecological receptors and environmentally sensitive areas;
iv. Site access routes;
v. Existing and future use of the site;
vi. Current and prior owners and operators of the sanitary landfill;
vii. Time period that the sanitary landfill was used for disposal;
viii. Characterization of the types of wastes disposed in the sanitary landfill;
ix. Vertical and horizontal extent of the waste;
x. Existing environmental controls and their condition and effectiveness;
xi. Chemical characteristics of all environmental media, including soil, leachate, groundwater, and surface water; and
xii. Landfill gas generation rates and migration data;
4. An engineering report addressing design and implementation of the following:
i. A Soil Erosion and Sediment Control Plan certified by the local soil conservation district in accordance with the Soil Erosion and Sediment Control Act of 1975, as amended (4:24-39 et seq.);
ii. Final cover;
iii. Final cover vegetation;
iv. A program for the maintenance of final cover and final cover vegetation;
v. A program for the maintenance of side slopes;
vi. Institution of run-on and run-off control programs;
vii. A program for the maintenance of run-on and run-off control programs;
viii. Groundwater monitoring wells;
ix. A program for the maintenance of groundwater monitoring wells;
x. A program for the monitoring of groundwater in accordance with NJPDES rules, N.J.A.C. 7:14A, and any permit for that sanitary landfill issued pursuant thereto;
xi. A methane gas venting or evacuation system;
xii. A program for the maintenance of methane gas venting or evacuation system;
xiii. A leachate collection and/or control system;
xiv. A program for the operation and maintenance of a leachate collection and/or control system;
xv. A program for the installation of a facility access control system;
xvi. A program for the maintenance of the facility access control system;
xvii. Measures to conform the site to the surrounding area;
xviii. A program for the maintenance of measures to conform the site to the surrounding areas;
xix. A program for monitoring hydrogen sulfide if required in accordance with N.J.A.C. 7:26-2A.7(h)10; and
xx. A material acceptance protocol that includes, but is not limited to, the following:
(1) An estimate of the total quantity of material proposed for acceptance;
(2) A description of the uses for the material proposed for acceptance, the locations where it will be used, and the quantities needed for each use;
(3) The physical, geotechnical, and chemical specifications required for each proposed use;
(4) A description of the material(s) proposed for acceptance and identification of the source(s);
(5) A discussion of the acceptability of the proposed uses and specifications related to any potential negative impacts to human health, safety, and the environment;
(6) A description of the application and evaluation process for pre-acceptance of a material from each specific source;
(7) A description of on-going monitoring of a source material;
(8) A description of sample collection, laboratory analysis, quality assurance, and data deliverable requirements for material evaluation;
(9) A description of the tracking, quality control, and inspection procedures to ensure all shipments of material received are approved materials from approved sources, and a description of shipment rejection procedures;
(10) A description of weighing procedures, or alternate method of determining quantities of material, for received shipments;
(11) A description of on-site materials handling, stockpiling, and placement procedures; and
(12) A description of the documentation procedures, and examples of such documentation, required to demonstrate compliance with all aspects of the material acceptance protocol.
5. A schedule for the implementation of all the provisions of this section.
(f) The Closure and Post-Closure Financial Plan for sanitary landfills that accepted solid waste for disposal on or after January 1, 1982, shall meet the following specific requirements:
1. The owner or operator of the sanitary landfill shall submit a Closure and Post-Closure Financial Plan to the Department that shall set forth the costs and expenses, and establish the means for meeting those costs and expenses, associated with full implementation of the approved Closure and Post-Closure Plan.
2. The Closure and Post-Closure Financial Plan shall include an estimate which details the cost of each provision of the Closure and Post-Closure Care Plan and a projection of funds that will be available from the Closure Act escrow account. Where the total expenses projected for the Closure and Post-Closure Care Plan exceed the amount of funds [page=2957] projected in the Closure Act escrow account, the owner or operator must identify specific alternative funds that are to be dedicated to ensure payment of all costs identified in the Closure and Post-Closure Plan. The Plan shall provide:
i. That no withdrawals may be made from the Closure Act escrow account until such time as the funds projected in the Closure Act escrow account are sufficient to pay for all closure costs identified in the Closure and Post-Closure Financial Plan; or
ii. That withdrawals may be made from the Closure Act escrow account concurrent with the use of the alternative funds described above, provided that such alternative funds are established in a manner similar to the Closure Act escrow account and the expenditures from such alternative funds are made subject to the approval of the Department.
3. The Closure and Post-Closure Financial Plan shall include an estimate which details the general and administrative costs, including, but not limited to, fees for engineering, legal, accounting, auditing and banking services, property and sales taxes, environmental impairment and general liability insurance, Department permits and review fees, and utility costs.
i. The costs in (f)3 above for non-construction and/or maintenance services are allowable for reimbursement from the Closure Act escrow accounts provided that:
(1) The costs are necessary and attendant to further the closure and post-closure requirements of the sanitary landfill;
(2) The Closure and Post-Closure Plan includes provisions for these costs and they are fully funded; and
(3) The projected costs are the same as or comparable to the costs for similar services.
ii. If there are insufficient funds available to complete the sanitary landfill's closure and post-closure requirements, as set forth in the Closure and Post-Closure Plan, reimbursement of costs for environmentally necessary construction and/or maintenance activities will take priority over general and administrative costs, unless otherwise approved in advance by the Department.
iii. The Department shall not disburse money from the Closure Act escrow account for the expenses incurred by the owner and/or operator of the sanitary landfill in an effort to challenge, contest or defy the Department's rules and regulations, and any permits or orders issued pursuant thereto.
4. The Closure and Post-Closure Financial Plan shall include the intervals at which each closure provision is to be implemented as well as a projection of when each Closure Act escrow account withdrawal is anticipated.
5. The Financial Plan shall take into consideration the effect of inflation on closure and post-closure expenses. Unless otherwise approved, the owner or operator shall calculate the latest closure cost estimate using a calculated adjusted inflation factor derived from the annual Implicit Price Deflator for the Gross Domestic Product as published by the U.S. Department of Commerce in its "Survey of Current Business." The adjusted inflation factor shall be the 10-year moving average inflation rate (average annual percentage) for the most current 10-year period of Gross Domestic Product Implicit Price Deflators, for example, 1987 compared with 1997 or 83.1 compared with 112.4 which yields a 3.06 percent average annual percentage change. The adjusted annual closure cost estimate shall equal the latest closure cost estimate times the adjusted inflation factor.
6. The owner or operator shall review the cost estimate every two years and, if necessary, revise the Closure and Post-Closure Financial Plan. The updated Financial Plan shall be submitted on the second anniversary of the date of the Financial Plan was last approved.
(g) Pursuant to N.J.S.A. 13:1E-100 et seq., the requirements for the Closure Act escrow account are as follows:
1. The owner and/or operator of every sanitary landfill shall deposit in a Closure Act escrow account as defined in (a) above, on or before the 20th of each month, an amount equal to $ 1.00 per ton of all solid waste accepted for disposal during the preceding month;
2. In the event that a measure other than the "ton" or "gallon" is used by the owner and/or operator of a sanitary landfill, the amount to be deposited shall be calculated by using equivalents established by the Division of Taxation;
3. Upon approval of the Department, those sanitary landfills which by the nature of their operation do not have the ability to measure the waste received in the manner provided for in this section may compute quantities of waste received by using an alternative, acceptable method;
4. The Closure Act escrow account shall be for the closure and post-closure care of a particular sanitary landfill and all funds therein shall be used exclusively for the closure and post-closure care of that landfill in accordance with the approved Closure and Post-Closure Plan;
5. The owner or operator of a sanitary landfill who shall fail to deposit funds into a Closure Act escrow account, as provided herein, or uses those funds for any purpose other than closure and post-closure care costs, as approved by the Department, shall be guilty of a crime of the third degree;
6. Where an owner or operator has ownership or control over more than one sanitary landfill, a separate Closure Act escrow account must be established for each facility;
7. The Closure Act escrow account shall be kept separate and apart from all other accounts maintained by the owner or operator. The fact that the owner or operator has previously established an escrow account pursuant to another law, rule or regulation, does not relieve them of their responsibility to establish a Closure Act escrow account under these rules;
8. Every Closure Act escrow account established pursuant to this section shall be based upon and governed by the standard escrow agreement provided for such purpose by the Department. Any revision to an escrow agreement shall first be approved by the Department and filed by the Department with the accredited financial institution as escrow agent. A copy of the standard escrow agreement provided by the Department may be obtained from the New Jersey Department of Environmental Protection, Division of Sustainable Waste Management, Bureau of Solid Waste Planning and Licensing, Mail Code 401-02C, PO Box 420, 401 East State Street, Trenton, New Jersey 08625-0420, Attention: Escrow Section;
9. The escrow agreement and any other document(s) evidencing the existence of the Closure Act escrow account must contain a reference to the purpose of the account that will put the personal creditors of the owner or operator on notice as to the nature of the account;
10. The Closure Act escrow account shall be established and maintained so as to maximize yield, minimize risk and maintain liquidity, and shall be subject to the approval of the Department;
11. All funds deposited in the Closure Act escrow account must be readily available in the event that circumstances necessitate the closure or post-closure care of the sanitary landfill prior to the date originally contemplated;
12. All interest or other income that results from investment of funds in the Closure Act escrow account shall be deposited into the Closure Act escrow account and subjected to the same restrictions as the principal;
13. Withdrawals from the Closure Act escrow account shall be authorized by the Department upon submission and approval of a written request that identifies the specific provision(s) of the Closure and Post-Closure Plan for which funding is sought. Authorization for such withdrawal will be granted only in accordance with the approved Closure and Post-Closure Care Plan, and after compliance with the following conditions:
i. The owner or operator has complied with all requests to modify the Closure and Post-Closure Plan;
ii. Except as otherwise authorized by the Department, the owner and/or operator submits to the Department "as built" certifications by a New Jersey licensed professional engineer that the applicable provision(s) of the Closure and Post-Closure Plan for which the preceding withdrawal was obtained has been, or is being, implemented as set forth in the Closure and Post-Closure Plan; and
iii. Where the Department has approved a Closure and Post-Closure Financial Plan providing for the use of alternative funds pursuant to (f)2ii above, withdrawals from the Closure Act escrow account will only be authorized to the extent that the cost exceeds the balance of the alternative fund. Where the alternative fund is an account, the Department shall allow the maintenance of the minimum balance necessary to keep such account open;
14. No withdrawals from a Closure Act escrow account may be made without written approval of the Department, except as otherwise authorized by the Department;
15. The Department may withhold disbursements for closure or post-closure work performed if the amount to be expended in any calendar year exceeds or is projected to exceed the amount budgeted for any line item provision in the closure plan, by more than 10 percent of the line item, as updated biennially in accordance with (f)6 above. The owner and/or operator shall seek and obtain Department approval prior to expending funds that exceed or are projected to exceed budgeted costs, by letter, including revised financial schedules, identifying the overage or projected overage, the reasons for the overage and the source of the funds to cover the overage. The Department shall approve or deny disbursements based on the rationale provided by the owner and/or operator and the long term impact on closure or post-closure;
16. The Department, although acknowledging the need for fund expenditure totalling a specific sum may, at its discretion, grant approval for the withdrawal of only a portion thereof, conditioning subsequent approvals upon the owner or operator's verification that the sum(s) authorized have been used solely for closure or post-closure care costs;
17. The Department may, at its discretion, determine that there is a need for closure or post-closure care expenditures and may require the owner or operator to withdraw such funds from the Closure Act escrow account at any time to meet such expenses;
18. Funds remaining in the Closure Act escrow account after complete and proper closure and post-closure care operations shall be paid into the Sanitary Landfill Facility Contingency Fund. A sanitary landfill will be deemed to be properly and completely closed where the Department determines that no further post-closure care maintenance or monitoring is necessary at the facility. When the Department makes such a determination, it shall notify the escrow agent and the owner or operator of the determination and shall supply the owner or operator with written approval for the transfer of the excess funds. Upon receipt of this written approval, all funds in said account shall be transferred to the Sanitary Landfill Facility Contingency Fund established pursuant to N.J.S.A. 13:1E-100 et seq., and the account will be closed;
19. The Closure Act escrow account shall not constitute an asset of the owner or operator and shall be established in such a manner as to ensure [page=2958] that the funds in the account will not be available to any creditor other than the Department in the event of bankruptcy or reorganization of the owner or operator;
20. The owner and/or operator of every sanitary landfill must arrange, with the financial institution wherein the funds are to be deposited, for a monthly statement of the Closure Act escrow account to be sent to the New Jersey Department of Environmental Protection, Division of Sustainable Waste Management, Bureau of Solid Waste Planning and Licensing, Mail Code 401-02C, PO Box 420, 401 East State Street, Trenton, New Jersey 08625-0420, Attention: Escrow Section; provided, however, the Department may at its discretion upon written petition from the owner and/or operator relieve the owner and/or operator from the requirement for the monthly statement of the Closure Act escrow account and substitute a quarterly (that is, once every three months) statement requirement therefor if it determines that monthly reporting on an account of less than $ 25,000 would impose an unnecessary burden on the financial institution;
21. The owner or operator of every sanitary landfill shall file with the Department, in duplicate, an annual audit of the Closure Act escrow account established for the closure of the sanitary landfill. The annual audit of the Closure Act escrow account shall be conducted by a New Jersey certified public accountant and shall be filed with the Department no later than October 31 of each year, including each of the post-closure care period years. For the purposes of the Closure Act escrow account only, the fiscal year shall begin on October 1 and terminate on September 30 of the following year, except that fiscal year 1982 shall begin on January 1, 1982, and terminate on September 30, 1982; and
22. The owner or operator of every sanitary landfill shall file, on or before the 20th of every month, with the New Jersey Department of Environmental Protection, Division of Sustainable Waste Management, Bureau of Solid Waste Planning and Licensing, Mail Code 401-02C, PO Box 420, Trenton, New Jersey 08625-0420, Attention: Escrow Section, a statement showing the exact amounts of all solid waste accepted for disposal during the preceding month, the total amounts of solid waste received calendar year-to-date, the funds deposited in and withdrawn from the Closure Act escrow account for the particular sanitary landfill during the current month, interest accrued, Closure Act escrow account balance, and the total calendar year-to-date funds deposited in and withdrawn from the Closure Act escrow account. These statements shall be filed on forms provided by the Department; provided, however, the Department may at its discretion upon written petition from the owner or operator relieve the owner or operator from the requirement for monthly reports and substitute a quarterly (that is, once every three months) reporting requirement therefor, if it determines that the monthly reporting on an account of less than $ 25,000 would impose an unnecessary burden on the owner or operator.
(h) The Closure and Post-Closure Financial Plan for any legacy landfill or closed sanitary landfill facility whose owner or operator accepts recyclable material, contaminated soil, wastewater treatment residual material, or construction debris shall meet the following specific requirements. For the purpose of this subsection, the above listed material types do not include dredged material as defined in N.J.A.C. 7:26-1.4. Where a sanitary landfill is subject to the Financial Plan requirements of both (f) above and this subsection, the owner or operator shall submit one Financial Plan that addresses both subsections:
1. The Financial Plan shall include detailed estimates of all costs and expenses associated with full implementation of the measures required by the Department for closure and post-closure care of the sanitary landfill:
i. Separate estimates shall be provided for closure activities and post-closure operations, maintenance, and monitoring.
(1) Costs for closure activities shall include, but are not limited to, costs for the design, purchase, installation, and construction of all environmental safeguards for closure and other closure-related costs incurred in the period prior to and during closure construction before closure certification is submitted. Closure costs shall also include the costs to manage any material that is not acceptable to the Department for use as final cover received at a closed sanitary landfill facility and any costs associated with re-establishment of environmental safeguards due to the acceptance of such material.
(2) Post-closure care costs shall include costs incurred to operate, maintain, and monitor the sanitary landfill in accordance with the Closure and Post-Closure Care Plan and applicable rules during the post-closure care period, as defined in (c)5 above, with the exception of any costs covered by (h)1i(1) above;
ii. Closure costs do not include costs for planned redevelopment or site improvements that are not related to the required closure environmental safeguards;
iii. The cost estimates shall reflect the cost of closure and post-closure care of the sanitary landfill at the point when the extent of the project and condition of the site would make closure and post-closure care most expensive;
iv. The cost estimates shall be based upon how much it would cost a third party (someone other than the owner or operator) to undertake closure; and
v. The cost estimates shall take into consideration the effect of inflation on closure and post-closure care expenses;
2. The Financial Plan shall include documentation that the owner or operator has established financial assurance for closure in an amount equal to or greater than the cost estimate for closure activities required above:
i. Financial assurance shall be maintained and shall remain in effect for a term not less than the actual time necessary to complete all closure activities at the legacy landfill or closed sanitary landfill facility;
ii. Financial assurance shall be established by surety bond, letter of credit, or line of credit, individually or in combination, upon which the Department may draw directly to fund closure in the event of failure to comply with an administrative consent order, agreement, closure or post-closure plan, or other permit or approval issued by the Department;
iii. If any part of the financial assurance is provided by a surety bond or letter of credit, the owner or operator shall establish a standby trust agreement for the benefit of the Department to receive any funds paid out by the provider of the financial assurance;
iv. Original surety bonds, letters of credit, lines of credit, and trust agreements used to comply with these requirements shall be submitted as part of the Financial Plan;
v. Financial assurance established to comply with this subsection shall also comply with the requirements of (j) below;
vi. Any person who fails to establish financial assurance, deposits, or places any waste or material prior to establishment of financial assurance, or uses those funds for any purpose other than closure costs as approved by the Department, or to pay damages or claims as approved by the Department or by a court, shall be guilty of a crime of the third degree;
3. The Financial Plan shall demonstrate that upon completion of closure, sufficient funds shall be available to pay the estimated costs of post-closure operation, maintenance, and monitoring. The Financial Plan shall include, at a minimum, the following:
i. The legacy landfill escrow account for the sanitary landfill required by N.J.S.A. 13:1E-125.6 and (i) below;
ii. The most recent monthly balance of the legacy landfill escrow account(s);
iii. An estimate of the quantity of recyclable material, contaminated soil, wastewater treatment residual material, and construction debris to be accepted at the sanitary landfill;
iv. Based upon projected revenue and materials management costs, the proposed dollar amount per ton of recyclable material, contaminated soil, wastewater treatment residual material, and construction debris to be deposited monthly in the legacy landfill escrow account to pay for post-closure costs, but in no case shall the deposit be less than $ 1.00 per ton; and
v. Where total expenses projected for the post-closure operations, maintenance, and monitoring exceed the amount of funds projected in the legacy landfill escrow account, specific alternative funds that are to be dedicated to an alternative funds escrow account through a written instrument, such as a contract or lease agreement, to ensure payment of all post-closure operation, maintenance, and monitoring costs;
4. The Financial Plan shall include one or more Certificate(s) of Insurance demonstrating that the owner or operator maintains liability insurance to pay for damages and claims resulting from operation or closure of the legacy landfill or closed sanitary landfill facility. The liability coverage shall meet the following requirements:
i. The insurance shall cover claims arising from an insured's general liability due to damage or injury caused by negligence or acts of omission during performance of his or her duties or business;
ii. The insurance shall also provide coverage in an amount of at least $ 4 million per occurrence and $ 8 million annual aggregate, exclusive of legal defense costs, for bodily injury and property damage to third parties from sudden and non-sudden pollution conditions that arise from the insured facility including the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials, or other irritants, contaminants, or pollutants into or upon land, the atmosphere, or any watercourse or body of water;
iii. The insurance provider shall meet the requirements of (j)1 below;
iv. Certificates of liability insurance for coverage required by (h)4ii above shall be worded as specified in (j)6 below; and
v. The liability insurance coverage in (h)4i and ii above shall be maintained through the entirety of the closure and post-closure care period;
5. All aspects of the Financial Plan shall be certified by a New Jersey licensed professional engineer;
6. The Financial Plan shall be updated, re-certified, and submitted to the Department for approval every two years after commencement of approved activities on the legacy landfill or closed sanitary landfill facility.
i. In the event of an increase in the cost estimate of closure activities, the owner or operator shall increase the amount of the financial assurance to an amount at least equal to the new estimate;
ii. If the closure cost estimate decreases, the owner or operator may submit a written request to the Department to reduce the amount of the financial assurance required. This request shall include a certification by a New Jersey licensed professional engineer detailing the decrease in the cost estimate, as applicable. The financial assurance may be reduced to the amount of the new estimate upon written approval by the Department; and
iii. The dollar amount per ton of recyclable materials, contaminated soil, wastewater treatment residual material, and construction debris deposited in the legacy landfill escrow account may be adjusted by the Department based upon a review of actual revenues and a revised estimate of post-closure costs.
(i) Pursuant to N.J.S.A. 13:1E-125.6, the requirements for the legacy landfill escrow account are as follows:
1. The owner or operator of each legacy landfill and each closed sanitary landfill facility that accepts on or after June 26, 2013, any recyclable material, contaminated soil, wastewater treatment residual material, or construction debris shall establish a legacy landfill escrow account as defined in (a) above. This account shall constitute an escrow account for the post-closure operation, maintenance, and monitoring costs of the legacy landfill or closed sanitary landfill facility. For the purpose of this subsection, the above listed material types do not include dredged material as defined in N.J.A.C. 7:26-1.4;
2. The owner or operator shall deposit, on or before the 20th of each month, into the legacy landfill escrow account an amount per ton, as determined by the Department in accordance with the approved Closure and Post-Closure Plan, of recyclable material, contaminated soil, wastewater treatment residual material, and construction debris accepted during the preceding month at the legacy landfill or closed sanitary landfill facility;
3. In the event that any waste or material is measured, upon acceptance, by a metric other than tons, the amount to be deposited shall be calculated by using the equivalents thereof as shall be determined by the Department;
4. Any owner or operator of a legacy landfill or closed sanitary landfill facility who fails to deposit funds into a legacy landfill escrow account, as provided in this subsection, or uses those funds for any purpose other than post-closure costs, as approved by the Department, shall be guilty of a crime of the third degree;
5. Where an owner or operator has ownership or control over more than one legacy landfill or closed sanitary landfill facility, a separate legacy landfill escrow account shall be established for each facility;
6. The legacy landfill escrow account shall be kept separate and apart from all other accounts maintained by the owner or operator. The fact that the owner or operator has previously established an escrow account pursuant to another law, rule, or regulation, does not relieve him or her of his or her responsibility to establish a legacy landfill escrow account under this subsection;
7. Every legacy landfill escrow account established pursuant to this subsection shall be based upon and governed by an escrow agreement provided for such purpose by the Department. Any revision to an escrow agreement shall first be approved by the Department and filed by the Department with the accredited financial institution as escrow agent. A copy of the escrow agreement provided by the Department may be obtained from the Department of Environmental Protection, Division of Sustainable Waste Management;
8. The escrow agreement and any other document(s) evidencing the existence of the legacy landfill escrow account shall contain a reference to the purpose of the account that will put all creditors of the owner or operator on notice as to the nature of the account;
9. The legacy landfill escrow account shall be established and maintained so as to maximize yield, minimize risk, and maintain liquidity, and shall be subject to the approval of the Department;
10. All funds deposited in the legacy landfill escrow account shall be readily available in the event that circumstances necessitate post-closure care activities at the sanitary landfill prior to the date originally contemplated;
11. All interest or other income that results from investment of funds in the legacy landfill escrow account shall be deposited into the legacy landfill escrow account and subjected to the same restrictions as the principal;
12. Withdrawals from the legacy landfill escrow account shall be authorized by the Department upon submission and approval of a written request that identifies the specific provision(s) of the Closure and Post-Closure Plan for which funding is sought. Authorization for such withdrawal will be granted only in accordance with the approved Closure and Post-Closure Plan, and after compliance with the following conditions:
i. The owner or operator has complied with all requests to modify the Closure and Post-Closure Plan; and
ii. Except as otherwise authorized by the Department, the owner and/or operator submits to the Department certifications by a New Jersey licensed professional engineer that the applicable provision(s) of the Closure and Post-Closure Plan for which the preceding withdrawal was obtained, has been, or is being, implemented as set forth in the Closure and Post-Closure Plan;
13. No withdrawals from the legacy landfill escrow account may be made without written approval of the Department, except as otherwise authorized by the Department;
14. The Department may withhold disbursements for post-closure work performed if the amount to be expended in any calendar year exceeds or is projected to exceed the amount budgeted for any line item provision in the closure plan, by more than 10 percent of the line item. The owner and/or operator shall seek and obtain Department approval prior to expending funds that exceed or are projected to exceed budgeted costs, by letter, including revised financial schedules, identifying the overage or projected overage, the reasons for the overage, and the source of the funds to cover the overage. The Department shall approve or deny disbursements based on the rationale provided by the owner and/or operator and the long-term impact on post-closure;
15. The Department, although acknowledging the need for fund expenditure totaling a specific sum may, at its discretion, grant approval for the withdrawal of only a portion thereof, conditioning subsequent approvals upon the owner or operator's verification that the sum(s) authorized have been used solely for post-closure care costs;
16. The Department may, at its discretion, determine that there is a need for post-closure care expenditures and may require the owner or operator to withdraw such funds from the legacy landfill escrow account at any time to meet such expenses;
17. Funds remaining in the legacy landfill escrow account after complete and proper closure and post-closure care operations shall be returned to the owner or operator. A sanitary landfill will be deemed to be properly and completely closed where the Department determines that no further post-closure care maintenance or monitoring is necessary at the [page=2960] facility. When the Department makes such a determination, it shall notify the escrow agent and the owner or operator of the determination and shall supply the owner or operator with written approval for the transfer of the excess funds in the legacy landfill escrow account to the owner or operator. Upon receipt of this written approval, all funds in the account shall be transferred to the owner or operator, as appropriate, and the account will be closed;
18. The legacy landfill escrow account shall not constitute an asset of the owner or operator and shall be established in such a manner as to ensure that the funds in the account will not be available to any creditor other than the Department in the event of bankruptcy or reorganization of the owner or operator;
19. The owner and/or operator shall arrange, with the financial institution wherein the funds are to be deposited, for a monthly statement of the legacy landfill escrow account to be sent to the Department of Environmental Protection, Division of Sustainable Waste Management; provided, however, the Department may, at its discretion, upon written petition from the owner and/or operator relieve the owner and/or operator from the requirement for the monthly statement of the legacy landfill escrow account and substitute a quarterly (that is, once every three months) statement requirement therefor, if it determines that monthly reporting on an account of less than $ 25,000 would impose an unnecessary burden on the financial institution;
20. The owner or operator shall file with the Department an annual audit of the legacy landfill escrow account established for the post-closure of the sanitary landfill. The annual audit of the legacy landfill escrow account shall be conducted by a New Jersey certified public accountant and shall be filed with the Department no later than October 31 of each year, including each of the post-closure care period years. For the purposes of the legacy landfill escrow account only, the fiscal year shall begin on October 1 and terminate on September 30 of the following year; and
21. The owner or operator shall file with the Department, on or before the 20th of every month, a statement showing the amounts of recyclable materials, contaminated soil, wastewater treatment residual material, and construction debris accepted during the preceding month, the total amounts of these materials received calendar year-to-date, the funds deposited in and withdrawn from the legacy landfill escrow account for the particular sanitary landfill during the current month, interest accrued, legacy landfill escrow account balance, and the total calendar year-to-date funds deposited in and withdrawn from the legacy landfill escrow account. These statements shall be filed on forms provided by the Department provided, however, that the Department may, at its discretion, upon written petition from the owner or operator, relieve the owner or operator from the requirement for monthly reports and require quarterly reporting (that is, once every three months), if the Department determines that the monthly reporting on an account of less than $ 25,000 would impose an unnecessary burden on the owner or operator.
(j) Financial assurance and liability insurance documents required by (h) above shall comply with the following:
1. The provider of any form of financial assurance or liability insurance required by (h) above shall:
i. Be licensed to do business in New Jersey;
ii. Have a minimum Financial Strength Rating of A- from A. M. Best Company, Inc., A- from Standard & Poor's Ratings Service, A3 from Moody's Investors Service, or A- from Fitch Ratings, Inc. and, if the rating agency in question issues rating outlooks, shall have a rating outlook of Positive or Stable; and
iii. Have a statutory surplus in U.S. dollars of at least $ 750 million, where statutory surplus equals total admitted assets minus total liabilities, and total admitted assets means assets permitted by State law to be included in an insurance company's or bank's annual financial statements;
2. A surety bond required by (h)2ii above shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
FINANCIAL GUARANTEE BOND
Date bond executed: [insert execution date]
Effective date: [insert effective date]
Principal: [insert legal name and business address of owner or operator]
Type of organization: [insert "individual," "joint venture," "partnership," or "corporation"]
State of incorporation: [insert state of incorporation]
Surety(ies): [insert name(s) and business address(es) of Surety(ies)]
Name, address, and closure amount for the facility guaranteed by this bond: [insert name, address and closure amount
for the sanitary landfill]
Total penal sum of bond: [insert amount of penal sum of bond]
Surety's bond number: [insert bond number]
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the New Jersey Department of Environmental Protection (hereinafter the Department), in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Surety(ies), bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the Solid Waste Management Act, as amended, and its implementing regulations to provide financial assurance for closure of the sanitary landfill identified above, and
Whereas said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;
Now, therefore, the conditions of this obligation are such that if the Principal shall faithfully perform closure, whenever required to do so, of the sanitary landfill for which this bond guarantees closure, in accordance with the Closure and Post-Closure Plan and other requirements of the approval as such plan and approval may be modified, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended,
Or, if the Principal shall provide alternate financial assurance as specified in N.J.A.C. 7:26-2A.9 (h), and obtain the Department's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the Department from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above.
Upon notification by the Department that the Principal has been found in violation of the closure requirements of N.J.A.C. 7:26-2A.9 for a sanitary landfill for which this bond guarantees performance of closure, the Surety(ies) shall place the closure amount guaranteed for the sanitary landfill into the standby trust fund as directed by the Department.
Upon notification by the Department that the Principal has failed to provide alternate financial assurance as specified in N.J.A.C. 7:26-2A.9, and obtain written approval of such assurance from the Department during the 90 days following receipt by both the Principal and the Department of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount guaranteed for the sanitary landfill into the standby trust fund as directed by the Department.
The Surety(ies) hereby waive(s) notification of amendments to Closure and Post-Closure Plans, approvals, applicable laws, statutes, rules, and regulations and agrees that no such amendment shall in any way alleviate its (their) obligation on this bond.
The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and to the Department, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the Principal and the Department, as evidenced by the return receipts.
The Principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the Department.
In Witness Whereof, The Principal and Surety(ies) have executed this Performance Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in N.J.A.C. 7:26-2A.9(j) as such regulation was constituted on the date this bond was executed.
Principal
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate seal]
Corporate Surety(ies)
[Name and address]
State of incorporation: [insert state of incorporation]
Liability limit: [insert liability limit]
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.]
Bond premium: [insert bond premium]
3. A letter of credit required by h(2)ii above shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
IRREVOCABLE STANDBY LETTER OF CREDIT
Commissioner
New Jersey Department of Environmental Protection
Dear Sir or Madam: We hereby establish our Irrevocable Standby Letter of Credit No. [insert number] in your favor, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [amount in words] U.S. dollars $[amount], available upon presentation of
(1) your sight draft, bearing reference to this letter of credit No. [insert number], and
(2) your signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to regulations issued under authority of the Solid Waste Management Act as amended."
This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by both you and [owner's or operator's name], as shown on the signed return receipts.
Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into the standby trust fund of [owner's or operator's name] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the wording specified in N.J.A.C. 7:26-2A.9(j) as such regulations were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution] [Date]
This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published and copyrighted by the International Chamber of Commerce," or "the Uniform Commercial Code"]
4. A standby trust agreement required by (h)2 above shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
STANDBY TRUST AGREEMENT
Trust agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator], a [name of state] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert "incorporated in the state of" or "a national bank"], the "Trustee."
Whereas, the New Jersey Department of Environmental Protection, "Department," an agency of the State of New Jersey, has established regulations at N.J.A.C. 7:26-2A.9 applicable to the Grantor, requiring that owners or operators of certain sanitary landfills provide assurance that funds will be available when needed to cover the cost of activities relating to the closure of certain sanitary landfills.
Whereas, the Grantor has elected to establish a [insert either "surety bond," or "letter of credit"] to provide all or part of such financial assurance for the sanitary landfill identified herein and is required to establish a standby trust fund able to accept payments from said instrument;
Whereas, the Grantor, acting through its duly authorized officers and with the approval of the Department, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as follows:
Section 1.
Definitions
As used in this Agreement:
(a) The term "Grantor" means the sanitary landfill owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.
Section 2.
Identification of the Sanitary Landfill and Financial Assurance Mechanism
This Agreement pertains to the sanitary landfill(s) identified on Schedule A. [On Schedule A, list the name, address, tax block(s) and lot(s), municipality(ies), and county(ies) of each sanitary landfill covered by this standby trust agreement].
This Agreement pertains to the [identify the financial assurance mechanism, either a surety bond, or letter of credit, from which the standby trust fund is established to receive payments].
Section 3.
Establishment of Fund
The Grantor and the Trustee hereby establish a trust fund, the "Fund," for the benefit of the Department. The Grantor and the Trustee intend that no third party shall have access to the Fund except as herein provided. The Fund is established initially as a standby trust fund to receive certain payments and shall not consist of any property. Payments made by the provider of financial assurance pursuant to the Commissioner of the Department's instructions are transferred to the Trustee and are referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor as provider of financial assurance, any payments necessary to discharge any liability of the Grantor established by the Department.
Section 4.
Payment for Closure Activities
The Trustee shall make payments from the Fund as the Commissioner of the Department shall direct, in writing, for the costs of activities relating to the closure of the sanitary landfills covered by the financial assurance mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the following:
(a) Any obligation of [insert name of sanitary landfill owner or operator] under a workers' compensation, disability benefits, or unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert name of owner or operator] arising from, and in the course of employment by [insert name of owner or operator];
(c) Bodily injury or property damage arising from the ownership, maintenance, use, or entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned, rented, loaned to, in the care, custody, or control of, or occupied by [insert name of owner or operator] that is not the direct result of a discharge from the facility;
(e) Bodily injury or property damage for which [insert name of owner or operator] is obligated to pay damages by reason of the assumption of liability in a contract or agreement other than a contract or agreement entered into to meet the requirements of N.J.A.C. 7:26-2A.9
The Trustee shall reimburse the Grantor, or other persons as specified by the Commissioner of the Department, from the Fund for closure activities in such amounts as the Commissioner of the Department shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the Commissioner of the Department specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5.
Payments Comprising the Fund
Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6.
Trustee Management
At such time as the corpus of the Fund is funded, the Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Department may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this Section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge its duties with respect to the trust fund solely in the interest of the Department and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the Grantor, or any other owner or operator of the sanitary landfill, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 U.S.C. 80a-2(a), shall not be acquired or held, unless they are securities or other obligations of the Federal or a state government;
(ii) The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the Federal or state government; and
(iii) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.
Section 7.
Commingling and Investment
The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 U.S.C. §§
80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.
Section 8.
Express Powers of Trustee
Without in any way limiting the powers and discretions conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or state government; and
(e) To compromise or otherwise adjust all claims in favor of or against the Fund.
Section 9.
Taxes and Expenses
All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10.
Annual Valuation
The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the Department a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the Department shall constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.
Section 11.
Advice of Counsel
The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any questions arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 12.
Trustee Compensation
The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
Section 13.
Successor Trustee
The Trustee may resign or the Grantor may with the approval of the Department replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee acceptable to the Department and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in writing sent to the Grantor, the Department and the present Trustee by certified mail 10 days before such change becomes effective.
Section 14.
Instructions to the Trustee
All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Schedule B or such other designees as the Grantor may designate by amendment to Schedule B, and approved in writing by an authorized representative of the Department. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests, and instructions by the Commissioner of the Department to the Trustee shall be in writing and signed by the Commissioner or his/her designee, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to [page=2963] act on behalf of the Grantor or the Commissioner hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the Commissioner, except as provided for herein.
Section 15.
Amendment of Agreement
This Agreement may be amended by an instrument in writing executed jointly by the Grantor, the Trustee, and the Department, or by the Trustee and the Commissioner of the Department if the Grantor ceases to exist.
Section 16.
Irrevocability and Termination
Subject to the right of the parties to amend this Agreement as provided in Section 15, this Trust shall be irrevocable and shall continue until terminated at the written direction of the Grantor and the Trustee, approved by the Department, or by the Trustee and the Commissioner of the Department, if the Grantor ceases to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor or, if the Grantor no longer exists, to the Department.
Section 17.
Immunity and Indemnification
The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or Commissioner of the Department issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 18.
Choice of Law
This Agreement shall be administered, construed, and enforced according to the laws of the State of New Jersey, or the Comptroller of the Currency in the case of National Association banks.
Section 19.
Interpretation
As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
In Witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals (if applicable) to be hereunto affixed and attested as of the date first above written. The parties below certify that the wording of this agreement is identical to the wording specified at N.J.A.C. 7:26-2A.9(j) as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
[Name of the Trustee]
[Title]
Attest:
[Seal]
5. A line of credit required by (h)2 above shall:
i. Include the name and address of the owner or operator and name and address of the sanitary landfill to which the line of credit applies;
ii. Specify that the line of credit shall be issued for a period of at least one year, and shall be automatically extended for a period of at least one year;
iii. State that, if the issuer of the line of credit decides not to extend the line of credit beyond the then current expiration date, the issuer shall notify the owner or operator of the sanitary landfill and the Department by certified mail of a decision not to extend at least 120 days before the current expiration date. The 120 days shall begin on the date when both the owner or operator and the Department have received the notice as evidenced by the return receipts;
iv. State that the provider of the line of credit shall only disburse those funds from the line of credit that the Department approves in writing to be disbursed;
v. State that the funds in the line of credit shall be utilized solely for the purposes of conducting closure of the sanitary landfill; and
vi. State that the Department may access the line of credit to pay for the costs of closure of the sanitary landfill in the event that the owner or operator fails to perform closure or comply with the requirements of the approved Closure and Post-Closure Plan.
6. A Certificate of Liability Insurance as required by (h)4 above shall be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
CERTIFICATE OF LIABILITY INSURANCE
1. [Name of Insurer], (the "Insurer"), of [address of Insurer] hereby certifies that it has issued liability insurance covering damages or claims resulting from operations or closure of a sanitary landfill to [name of insured], (the "insured"), of [address of insured] in connection with the insured's obligation to demonstrate liability insurance under N.J.A.C. 7:26-2A.9(h) 4ii. The coverage applies at [Name and address of sanitary landfill]. The limits of liability are [insert the dollar amount of the "each occurrence" and "annual aggregate" limits of the Insurer's liability], exclusive of legal defense costs. The coverage is provided under policy number [number], issued on [date]. The effective date of said policy is [date].
2. The Insurer further certifies the following with respect to the insurance described in Paragraph 1:
(a) Bankruptcy or insolvency of the insured shall not relieve the Insurer of its obligations under the policy.
(b) The Insurer is liable for the payment of amounts within any deductible applicable to the policy, with a right of reimbursement by the insured for any such payment made by the Insurer.
(c) Whenever requested by the New Jersey Department of Environmental Protection, (the "Department"), the Insurer agrees to furnish to the Department a signed duplicate original of the policy and all endorsements.
(d) Cancellation of the insurance, whether by the insurer, the insured, a parent corporation providing insurance coverage for its subsidiary, or by a firm having an insurable interest in and obtaining liability insurance on behalf of the owner or operator of the sanitary landfill, will be effective only upon written notice and only after the expiration of 60 days after a copy of such written notice is received by the Department.
(e) Any other termination of the insurance will be effective only upon written notice and only after the expiration of 30 days after a copy of such written notice is received by the Department.
I hereby certify that the wording of this instrument is identical to the wording specified in N.J.A.C. 7:26-2A.9 (j) as such regulation was constituted on the date first above written, and that the Insurer is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in New Jersey.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer]
[Address of Representative]
