New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 9 - SOLID WASTE
Part 10 - FINANCIAL ASSURANCE
Section 20.9.10.16 - IRREVOCABLE STANDBY LETTER OF CREDIT
Current through Register Vol. 35, No. 18, September 24, 2024
An owner or operator may demonstrate financial assurance for closure, post-closure care, phase I and phase II assessments, and corrective action by obtaining an irrevocable standby letter of credit worded as in forms supplied by the department and payable to a trust fund or standby trust fund established in conformance with 20.9.10.14 NMAC.
A. In the case of closure, post-closure care, and phase I and phase II assessments, the letter of credit shall be effective prior to the initial receipt of waste. In the case of corrective action, the letter of credit shall be effective no later than 120 days after the corrective action remedy has been approved by the secretary.
B. The issuing institution shall be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a federal or state of New Mexico agency. The issuing institution shall be authorized to transact business in the state of New Mexico.
C. A letter from the owner or operator referring to the letter of credit by number, issuing institution, issue date, and providing the name and address of the facility, and the amount of funds assured, shall be submitted to the secretary along with the letter of credit. A copy of the letter from the owner or operator and a copy of the letter of credit shall be placed in the operating record.
D. The institution issuing the letter of credit shall be an institution with assets of at least one billion dollars ($1,000,000,000). If the assets of the issuing institution are less than this amount, the letter of credit shall be fully collateralized by the owner or operator.
E. The letter of credit shall be irrevocable and issued for a period of at least one year. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the owner or operator and to the secretary 120 days in advance of cancellation. If the issuing institution notifies the owner or operator that it plans to cancel the letter of credit, the owner or operator shall obtain alternate financial assurance at least 30 days prior to the cancellation date. If the owner or operator fails to obtain alternate financial assurance in a timely manner, the secretary shall draw funds guaranteed by the letter of credit and place them in the trust fund or standby trust fund.
F. The trust fund or standby trust fund established by the owner or operator shall be worded as in forms supplied by the department.
G. The owner or operator may cancel the letter of credit only if alternate financial assurance is substituted as specified in 20.9.10.13 - 20.9.10.23 NMAC or if the owner or operator is notified in writing by the secretary that financial assurance is no longer required.
H. The owner or operator shall file an originally signed duplicate of the standby trust agreement and originally signed duplicate of the letter of credit with the department.
