Current through Register Vol. 35, No. 18, September 24, 2024
A. An owner or operator may demonstrate
financial assurance for closure, post-closure, phase I and phase II assessment,
and corrective action, as required by 20.9.10.9 - 20.9.10.12 NMAC by obtaining
a written guarantee provided by a local government. The guarantor must meet the
requirements of the local government financial test in 20.9.10.19 NMAC, and
must comply with the terms of a written guarantee.
B. Terms of the written guarantee. The
guarantee must be effective prior to the initial receipt of waste, or in the
case of existing facilities, prior to the effective date of this part. In the
case of closure, post-closure care, or phase I and phase II assessments, or no
later than 120 days after the corrective action remedy has been selected in
accordance with the requirements of 20.9.9 NMAC, the permit issuance, or the
secretary's decision. The guarantee must provide that if the owner or operator
fails to perform closure, post-closure care, phase I and phase II assessments,
or corrective action of a facility covered by the guarantee, the guarantor will
perform, or pay a third party to perform, closure, post-closure care, and
corrective action as required; or establish a fully funded trust fund as
specified in 20.9.10.14 NMAC in the name of the owner or operator.
(1) The guarantee shall remain in force
unless the guarantor sends notice of cancellation by certified mail to the
owner or operator and to the secretary. Cancellation shall not occur, however,
during the 120 days beginning on the date of receipt of the notice of
cancellation by both the owner or operator and the secretary, as evidenced by
the return receipts.
(2) If a
guarantee is canceled, the owner or operator must within 90 days following
receipt of the cancellation notice by the owner or operator and the secretary,
obtain alternate financial assurance, place evidence of that alternate
financial assurance in the facility operating record, and notify the secretary.
If the owner or operator fails to provide alternate financial assurance within
the 90-day period, the guarantor must provide that alternate assurance within
120 days following the close of the guarantor's fiscal year, obtain alternative
assurance, place evidence of the alternate assurance in the facility operating
record and notify the secretary.
C. Record keeping and reporting.
(1) The owner or operator must place a
certified copy of the guarantee along with the items required under Subsection
E of 20.9.10.19 NMAC into the facility's operating record prior to the initial
receipt of waste, or in the case of existing facilities, prior to the effective
date of this part. In the case of closure, post-closure care, or phase I and
phase II assessments, or no later than 120 days after the corrective action
remedy has been selected in accordance with the requirements of 20.9.9 NMAC,
the permit issuance, or the secretary's decision.
(2) The owner or operator is no longer
required to maintain the items specified in Subsection C of 20.9.10.21 NMAC
when the owner or operator substitutes alternate financial assurance as
specified in 20.9.10.13 NMAC through 20.9.10.23 NMAC; or the owner or operator
is released from the requirements of 20.9.10.13 NMAC through 20.9.10.23 NMAC in
accordance with Subsection B of 20.9.10.9 NMAC, Subsection B of 20.9.10.10
NMAC; Subsection B of 20.9.10.11 NMAC, or Subsection B of 20.9.10.12
NMAC.
(3) If a local government
guarantor no longer meets the requirements of Subsection E of 20.9.10.19 NMAC
the owner or operator must, within 90 days following the close of the
guarantor's fiscal year obtain alternative assurance, place evidence of the
alternate assurance in the facility operating record, and notify the secretary.
If the owner or operator fails to provide alternate financial assurance within
the 90-day period, the guarantor must provide that alternate assurance within
120 days.
