Current through all regulations passed and filed through March 18, 2024
(A) Applicability.
(1) For sanitary landfill facilities,
solid
waste incinerators, scrap tire storage facilities, scrap tire recovery
facilities, and scrap tire transporters, financial assurance information shall
be submitted as part of a permit to install or registration certificate
application for a new solid waste facility, for a modification that increases
the closure cost estimate of an existing facility, or as part of a permit to
install application submitted in response to division (A)(3) or (A)(4) of
section
3734.05 of
the Revised Code.
(2) For sanitary
landfill facilities subject to paragraph (A) of rule
3745-27-11 or 3745-30-09 of the Administrative
Code, as applicable, the owner or operator shall submit to Ohio EPA a closure
financial assurance instrument in accordance with this
rule.
(B) Implementation.
(1) The owner or operator of a solid waste
facility shall execute and fund the closure financial assurance instrument
submitted as a part of a permit to install or registration certification
application prior to receipt of solid waste at a new solid waste facility,
prior to acceptance of waste pursuant to a modification that increases closure
cost estimates of an existing solid waste facility, or prior to issuance of a
permit to install for which an application was submitted in response to
division (A)(3) or (A)(4) of section
3734.05 of
the Revised Code.
(2) The owner or
operator of a sanitary landfill facility subject to paragraph (A) of rule
3745-27-11 or 3745-30-09 of the Administrative
Code, as applicable, shall execute and fund the closure financial assurance
instrument not later than sixty days after approval of the closure/post-closure
care plan.
(3) Scrap tire
transporters shall execute and fund the closure financial assurance instrument
submitted as part of a registration certificate application prior to issuance
of a registration certificate.
(C) Closure financial assurance instrument.
(1) Solid waste facilities.
(a) The closure financial assurance
instrument for a sanitary landfill facility or solid waste incinerator shall contain an
itemized written estimate, in current dollars, of the cost of closure. The
closure cost estimate shall be based on the closure costs at the point in the
operating life of the facility when the extent and manner of its operation
would make the closure the most expensive, and be based on a third party conducting the
closure activities. Ohio EPA may review, approve, or require revisions to the
closure cost estimate or to the closure financial assurance
instrument.
(b) The closure
financial assurance instrument for a scrap tire storage or recovery facility
shall contain an itemized written estimate, in current dollars, of the cost for
a third party to complete closure of the facility. Ohio EPA may review,
approve, or require revisions to the closure cost estimate or to the closure
financial assurance instrument. The cost estimate shall be based on one of the
following:
(i) The cost of closure performed
in accordance with rule
3745-27-66
of the Administrative Code.
(ii)
The fixed fee closure cost estimate calculated in accordance with paragraph
(C)(3) of this rule.
(c)
The closure financial assurance instrument for a mobile scrap tire recovery
facility or for portable equipment operated by a licensed class I or II scrap
tire recovery facility at a site other than the facility's licensed site shall
contain a closure cost estimate of fifty thousand
dollars.
(2) For a
scrap tire transporter, the financial assurance instrument shall contain a
closure cost estimate of twenty thousand dollars.
(3) For the purposes of this rule, the fixed
fee closure cost estimate for a solid waste facility that is a scrap tire
storage or scrap tire recovery facility shall be calculated as shown in rule
3745-27-61
of the Administrative Code. The closure cost estimate shall be based on the
closure costs at the point in the operating life of the facility when the
extent and manner of its operation would make the closure the most expensive,
and shall be based on a third party conducting the closure activities. Ohio EPA
may review, approve, or require revisions to the closure cost estimate or to
the closure financial assurance instrument.
(D) Review of closure financial assurance
instruments. The owner or operator of a solid waste facility shall submit
the most recently adjusted closure
cost estimate to the director by certified mail or
any other form of mail accompanied by a receipt. The owner or operator of
a solid waste facility or scrap tire transporter that has a closure cost
estimate greater than twenty thousand dollars shall do the following:
(1) Annually review and analyze the closure
cost estimate and make any
appropriate revisions to The estimates and to the financial assurance
instrument whenever a change in the closure activities increases the cost of
closure. Any revised closure cost estimate shall be adjusted
for inflation as specified in paragraph (D)(2) of this rule.
(2) Annually adjust the closure cost estimate
for inflation. The adjustment shall be made using the preceding February inflation
factor derived from the annual implicit price deflator for gross domestic
product as published by the U.S. department of commerce. The inflation factor
is the result of dividing the latest published annual deflator by the deflator
for the previous year. The inflation adjustment shall
be calculated as follows:
(a)
For the
first adjustment,
by multiplying the closure cost estimate by the inflation factor.
The result is the adjusted closure cost estimate.
(b)
For
subsequent adjustments,
by multiplying the most recently
adjusted closure cost estimate by the most recent inflation
factor.
(E) The
owner or operator of a solid waste facility or scrap tire transporter shall
select a closure financial assurance mechanism from the list of mechanisms
specified in paragraphs (F) to (L) of this rule, except as otherwise specified
by this rule, provided the owner or operator satisfies the criteria for use of
that mechanism.
(F) Closure trust
fund.
(1) The owner or operator may satisfy
the requirements of this rule by establishing a closure trust fund
that
conforms to this paragraph and by sending an originally signed duplicate of the
trust agreement to the director within the time period outlined in paragraph
(B) of this rule and by submitting a copy into the
operating record of the facility in accordance with rule
3745-27-09
of the Administrative Code, if applicable. The trustee shall be an entity
that has the authority to act as a trustee and whose trust
operations are regulated and examined by a federal or state agency.
(2) The wording of the trust agreement shall
be identical to the wording specified in paragraph (A)(1) of rule
3745-27-17
of the Administrative Code on forms prescribed by the director and be accompanied by a formal certification of
acknowledgment. "Schedule A" of the trust agreement shall be updated not later
than sixty days after a change in the amount of the current closure cost
estimate provided for in the agreement.
(3) A closure trust fund shall be established
to secure an amount at least equal to the current closure cost estimate or the
scrap tire transporter cost estimate, except as provided in paragraph (M) of
this rule. Except for payments made in accordance with paragraph (F)(4)
of this rule, payments to the trust fund shall be made annually by the owner or operator during the
pay-in period.
The pay-in period shall be
the
anticipated life of the facility as calculated using the authorized
maximum daily waste receipt and the approved volume of the solid waste
facilityas shown in the authorizing
document. A receipt from the trustee for each payment shall be
submitted by the owner or operator to the director and the first payment
into the closure trust fund shall be at least equal to
the current closure cost estimate divided by the number of years in the pay-in
period, except as provided in paragraph (M) of this rule and shall be
made in accordance with
this rule. Subsequent payments to the closure trust fund shall be made as
follows:
(a)
Not later than thirty
days after each anniversary date of the first payment. The amount of each
subsequent payment shall be determined by performing the following calculation:
Next payment = (CE - CV) / Y
Where CE is the current closure cost estimate, CV is the
current value of the trust fund, and Y is the number of years remaining in the
pay-in period.
(b) If the
owner or operator establishes a trust fund, as specified in this rule, and the
value of the trust fund is less than any revised current closure cost estimate
made during the pay-in period, the amount of the current closure cost estimate
still to be paid into the trust fund shall be paid in over the pay-in period,
as defined in paragraph (F)(3) of this rule. Payments shall continue to be made
not later than thirty days after each anniversary date of the first payment
pursuant to paragraph (F)(3)(a) of this rule. The amount of each payment shall
be determined by performing the following calculation:
Next payment = (CE - CV) / Y
Where CE is the current closure cost estimate, CV is the
current value of the trust fund, and Y is the number of years remaining in the
pay-in period.
(c) The owner
or operator may make the first installment of the pay-in period by providing
alternative financial insurance using one of the
mechanisms specified in paragraph (G), (I), or (J) of this rule in an amount at
least equal to the first installment. On the anniversary date of the first
installment, the owner or operator shall pay into the trust an amount at least
equal to the first and second installments required by this
paragraph or select an alternative financial assurance
mechanism.
(4) The owner
or operator may accelerate payments into the trust fund or deposit the full amount of the current closure cost
estimate at the time the fund is established. The owner
or operator shall maintain the value of the fund at no less than the value
of the fund if annual payments were made as specified in paragraph (F)(3) of this
rule.
(5) If the owner or operator
establishes a closure trust fund after having begun funding closure under any
mechanism specified in this rule, the closure trust fund shall be established
by depositing the total value of all prior mechanisms into the newly
established trust fund. The subsequent annual payments shall be made as
specified in paragraph (F)(3) of this rule.
(6) After the pay-in period of a trust fund
has ended and the current closure cost estimate changes, the owner or operator
shall compare the revised estimate to the trustee's most recent annual
valuation of the trust fund. If the value of the trust fund is less than the
amount of the revised estimate, the owner or operator shall, not later than
sixty days after the change in the cost estimate, either deposit a sufficient
amount into the trust fund so that The value after payment at least equals the amount of
the current closure cost estimate, or obtain alternative
financial assurance as specified in this rule to compensate for the
difference.
(7) The director shall
instruct the trustee to release to the owner or operator such funds as the
director specifies in writing after
receiving one of the following requests from the owner or operator
:
(a)
Release of the amount in excess
of the current closure cost estimate, if the value of the trust fund is greater
than the total amount of the current closure cost estimate.
(b)
Release of the amount in the trust fund that exceeds
the amount required as a result of such substitution, if the owner or operator
substitutes any of the alternative financial assurance mechanisms specified
in this rule for all or part of the trust fund.
(8) Reimbursement for closure at solid waste
facilities.After
beginning
closure the owner or operator, or any
other person authorized by the owner, operator, or director to perform closure,
may request reimbursement for closure expenditures by submitting itemized bills
to the director. After receiving itemized bills for closure activities, the
director shall determine whether the closure expenditures are in accordance
with the closure/ post-closure plan, permit or registration requirements, or
applicable rules, or are otherwise justified, and if so,
shall
instruct the trustee to make reimbursement in such amounts as the director
specifies in writing. If the director determines that the cost of closure will
be greater than the value of the trust fund, the director may withhold
reimbursement of such amounts as the director deems prudent until the director
determines, in accordance with paragraph (O) of this rule, that the owner or
operator is no longer required to maintain financial assurance for closure of
the facility.
(9)
The owner or operator may request reimbursement from
the scrap tire transporter trust fund as follows:
(a) When the requirements of paragraph (O) of
this rule have been met.
(b) To
remove and properly dispose of scrap
tires that have been open dumped by the scrap tire
transporter.
(c) To comply with rule
3745-27-79
of the Administrative Code.
(d) To
cover the owner or operator's liability for sudden, accidental
occurrences that result in damage or injury to persons or property or to the
environment.
(e) For expenditures
specified in this rule that may be reimbursed by submitting itemized bills to
the director. After receiving itemized bills, the director shall determine
whether the expenditures are authorized by this rule and
are in accordance with The applicable requirements of Chapter 3745-27 of the
Administrative Code, or are otherwise justified, and if so,
shall
instruct the trustee to make reimbursement in such amounts as the
director specifies in writing. If the director has reason to believe that the
value of the trust fund will be insufficient to cover the cost of the required
activities, the director may withhold reimbursement of such amounts as the
director deems prudent until the director determines, in accordance with
paragraph (O) of this rule, that the owner or operator is no longer required to
maintain scrap tire transporter financial assurance.
(10) The director may agree to
termination of trust when one of the following occurs:
(a) The owner or operator substitutes
alternative financial assurance for closure as
specified in this
rule.
(b) The director notifies the
owner or operator, in accordance with paragraph (O) of this rule, that the owner or operator is no longer required by
this rule to maintain financial assurance for closure of the facility or for a
scrap tire transporter.
(G) Surety bond guaranteeing payment into a
closure trust fund.
(1) The owner or operator
may satisfy the requirements of this rule by obtaining a surety bond that
conforms to the requirements of this paragraph and by delivering the originally
signed bond to the director by certified mail or any other form of mail
accompanied by a receipt within the time period outlined in paragraphs (A) and
(B) of this rule and by submitting a copy of the bond into the operating record
in accordance with rule
3745-27-09
of the Administrative Code, if applicable. The surety company issuing the bond
shall at a minimum be among those listed as acceptable sureties on federal
bonds in the most recent listing of approved sureties as published
by the U.S. department of the treasury.
(2) The wording of the surety bond shall be
identical to the wording specified in paragraph (B) of rule
3745-27-17
of the Administrative Code on forms prescribed by the director.
(3) The owner or operator who uses a surety
bond to satisfy the requirement of this rule
shall also establish a standby trust fund not later than when the bond is
obtained. Under the terms of the surety bond, all payments made thereunder will
be deposited by the surety directly into the standby trust fund in accordance
with instructions from the director. This standby trust fund shall meet
paragraph (F) of this rule, except as follows:
(a) An originally signed duplicate of the
trust agreement shall be delivered to the director with the surety bond and
a copy shall be placed in the operating record in
accordance with rule
3745-27-09
of the Administrative Code, if applicable.
(b) Until the standby trust fund is funded,
pursuant to the requirements of this rule, the following are not required:
(i) Payments into the trust fund as specified
in paragraph (F) of this rule.
(ii)
Revisions of "Schedule A" of the trust agreement to show current closure cost
estimate or scrap tire transporter closure cost estimate.
(iii) Annual valuations as required by the
trust agreement.
(iv) Notices of
nonpayment as required by the trust agreement.
(4) The bond shall guarantee that the surety
will become liable on the bond obligation unless the owner or operator does one
of the following, as applicable:
(a) Funds the
standby trust fund in an amount equal to the penal sum of the bond before the
beginning of closure of the facility.
(b) For a solid waste facility, funds the
standby trust fund in an amount equal to the penal sum not later than fifteen
days after a mandatory closure in accordance with the closure/post-closure care
plan, permit or registration requirements, and applicable rules.
(c) For a scrap tire transporter, funds the
standby trust fund in an amount equal to the penal sum of the bond in
accordance with the following, as applicable:
(i) Before the registration certificate
issued to the scrap tire transporter has expired and a renewal registration has
not been applied for in the manner prescribed in this chapter.
(ii) Not later than fifteen days after the
denial of a renewal registration certificate applied for by the owner or
operator.
(iii) Not later than
fifteen days after the suspension or revocation of the registration certificate
issued to the owner or operator.
(d)
Not later than ninety days after both
the owner or operator and the director receive notice of cancellation of the
bond from the surety, provides alternative financial assurance as
specified in this rule and obtains the
director's written approval of the alternative
financial assurance provided.
(5) Under the terms of the bond, the surety
shall become liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond.
(6) The penal sum of the bond shall be in an
amount at least equal to the current closure cost estimate
except as provided in paragraph (M) of this rule.
(7) Whenever the current closure cost
estimate increases to an amount greater than the penal sum of the bond, the
owner or operator shall, not later than sixty days after the increase in the
estimate, either cause the penal sum of the bond to be increased to an amount
at least equal to the current closure cost estimate and submit evidence of such
increase to the director, and into the operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable, or obtain alternative
financial assurance, as specified in this rule, to compensate for the increase.
Whenever the current closure cost estimate decreases, the penal sum may be
reduced to the amount of the current closure cost estimate following written
approval by the director. Notice of an increase or a proposed decrease in the
penal sum shall be sent to the director not later than sixty days after the
change.
(8) Under the terms of the
bond, the bond shall remain in force unless the surety sends written notice of
cancellation by certified mail or any other form of mail accompanied by a
receipt to the owner or operator and to the director. Cancellation cannot
occur, however, during the one hundred twenty day period beginning on the first
day that both the owner or operator and the director have received the notice
of cancellation, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond
if the director has given prior written consent. The director
shall
provide such written consent to the surety bond company when one of the
following occurs:
(a) The owner or operator
substitutes alternative financial assurance for closure of a facility or for a
scrap tire transporter as specified in this rule.
(b) The director notifies the owner or
operator, in accordance with paragraph (O) of this rule that the owner or
operator is no longer required to maintain financial assurance for closure of a
facility or for a scrap tire transporter.
(H) Surety bond guaranteeing performance of
closure.
(1) The owner or operator may satisfy
the requirements of this rule by obtaining a surety bond which conforms to the
requirements of this paragraph and by delivering the originally signed bond to
the director within the time period outlined in paragraphs (A) and (B) of this
rule and by submitting a copy of the surety bond into the operating record of
the facility in accordance with rule
3745-27-09
of the Administrative Code, if applicable. The surety company issuing the bond
shall at a minimum be among those listed as acceptable sureties on federal
bonds in the most recent listing of approved sureties as published
by the U.S. department of the treasury.
(2) The wording of the surety bond shall be
identical to the wording specified in paragraph (C) of rule
3745-27-17
of the Administrative Code on forms prescribed by the director.
(3) The owner or operator who uses a surety
bond to satisfy the requirements of this rule
shall also establish a standby trust fund. Under the terms of the surety bond,
all payments made thereunder will be deposited by the surety directly into the
standby trust fund in accordance with instructions from the director. This
standby trust fund shall meet paragraph (F) of this rule except as follows:
(a) An originally signed duplicate of the
trust agreement shall be delivered to the director with the surety bond, and a copy shall be
placed in the operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable.
(b) Unless the standby trust fund is funded
pursuant to this rule, the following are not required:
(i) Payments into the trust fund as specified
in paragraph (F) of this rule.
(ii)
Revisions of "Schedule A" of the trust agreement to show current closure cost
estimate or the scrap tire transporter cost estimate.
(iii) Annual valuations as required by the
trust agreement.
(iv) Notices of
nonpayment as required by the trust agreement.
(4) The bond shall guarantee that the surety
will become liable on the bond obligation unless the owner or operator does one
of the following, as applicable:
(a) For
a solid waste facility,
performs closure in accordance with the closure/post-closure plan, permit or
registration requirements, and applicable rules.
(b) For a scrap
tire transporter,
the following, as applicable:
(i) Removes and
properly disposes of any scrap tires in the scrap tire transporter's possession
or which have been open dumped by the scrap tire transporter.
(ii) Complies with the requirements of rule
3745-27-79
of the Administrative Code.
(iii)
Provides coverage for the owner or operator's liability for sudden, accidental
occurrences that result in damage or injury to persons or property or to the
environment.
(c) Provides
alternative financial assurance as specified in this
rule and obtains the director's written
approval of the alternative financial assurance provided not later than ninety days after both the owner
or operator and the director receive notice of cancellation of the bond from
the surety.
(5)
(a) Under the terms of the bond, the surety
will become liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond. Following a determination by the director
that the owner or operator of the solid waste facility has failed to perform
closure activities in accordance with the closure/post-closure care plan,
permit or registration requirements, and applicable rules, the surety shall
perform closure in accordance with the closure/post-closure care plan, permit
or registration requirements, and applicable rules, or will deposit the amount
of the penal sum into the standby trust fund.
(b) In the case of a scrap tire transporter,
following a determination by the director that the owner or operator has failed
to perform the activities specified in paragraph (H)(4)(b) of this rule, the
surety shall perform the activities specified in paragraph (H)(4)(b) of this
rule, or will deposit the amount of the penal sum into the standby trust
fund.
(6) The penal sum of
the bond shall be in an amount at least equal to the current closure cost
estimate or the scrap tire transporter cost estimate.
(7) Whenever the current closure cost
estimate increases to an amount greater than the penal sum of the bond, the
owner or operator shall, not later than sixty days after the increase in the
estimate, either cause the penal sum of the bond to be increased to an amount
at least equal to the current closure cost estimate and submit evidence of such
increase to the director, and into the operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable, or obtain alternative
financial assurance, as specified in this rule, to compensate for the increase.
Whenever the current closure cost estimate decreases, the penal sum may be
reduced to the amount of the current closure cost estimate following written
approval by the director. Notice of an increase or a proposed decrease in the
penal sum shall be sent to the director by certified mail or any other form of
mail accompanied by a receipt not later than sixty days after the
change.
(8) Under the terms of the
bond, the bond shall remain in force unless the surety sends written notice of
cancellation by certified mail or any other form of mail accompanied by a
receipt to the owner or operator and to the director. Cancellation cannot
occur, however, during the one hundred twenty day period beginning on the first
day that both the owner or operator and the director have received the notice
of cancellation as evidenced by the return receipts.
(9) The owner or operator may cancel the bond
if the director has given prior written consent. The director
shall
provide such written consent to the surety bond company when one of the
following occurs:
(a) The owner or operator
substitutes alternative financial assurance for closure of a
facility or for a scrap tire transporter as specified in this rule.
(b) The director notifies the owner or
operator, in accordance with paragraph (O) of this rule, that the owner or operator is no longer required by
this rule to maintain financial assurance for closure of a facility or for a
scrap tire transporter.
(10) The surety shall not be liable for
deficiencies in the completion of closure of a facility or scrap tire
transporter by the owner or operator after the owner or operator has been
notified by the director, in accordance with this rule, that the owner or
operator is no longer required to maintain financial assurance for closure of a
facility or for a scrap tire transporter.
(I) Closure letter of credit.
(1) The owner or operator may satisfy
the requirements of this rule by obtaining an
irrevocable standby letter of credit ("letter of credit") which conforms to the
requirements of this paragraph and by having the originally signed letter of
credit delivered to the director by certified mail or any other form of mail
accompanied by a receipt within the time period outlined in paragraphs (A) and
(B) of this rule and by submitting a copy of the
letter of credit into the operating record of the facility in accordance with
rule
3745-27-09
of the Administrative Code, if applicable. The issuing institution shall be an
entity which has the authority to issue letters of credit and whose letter of
credit operations are regulated and examined by a federal or state
agency.
(2) The wording of the
letter of credit shall be identical to the wording specified in paragraph (D)
of rule
3745-27-17
of the Administrative Code on forms prescribed by the director.
(3) An owner or operator who uses a letter of
credit to satisfy the requirements of this rule
shall also establish a standby trust fund. Under the terms of the letter of
credit, all amounts paid pursuant to a draft by the director shall be deposited
promptly and directly by the issuing institution into the standby trust fund in
accordance with instructions from the director. The standby trust fund shall
meet the requirements of the trust fund specified in paragraph (F) of this
rule, except as follows:
(a) An originally
signed duplicate of the trust agreement shall be delivered to the director with
the letter of credit, and a copy shall placed in the operating
record in accordance with rule
3745-27-09
of the Administrative Code, if applicable.
(b) Unless the standby trust fund is funded
pursuant to this rule,
the following are not required:
(i) Payments
into the trust fund as specified in paragraph (F) of this rule.
(ii) Updating of "Schedule A" of the
trust agreement to show current closure cost estimate or the scrap tire
transporter closure cost estimate.
(iii) Annual valuations as required by the
trust agreement.
(iv) Notices of
nonpayment as required by the trust agreement.
(4) The letter of credit shall be accompanied
by a letter from the owner or operator referring to the letter of credit by
number, issuing institution, and date, and providing the following information:
the names and addresses of the solid waste facility and the owner and the
operator and the amount of funds assured for closure of the facility by the
letter of credit or in the case of scrap tire transporters, the name and
address of the owner and the operator.
(5) 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, at least one hundred twenty days prior to the current
expiration date, the issuing institution notifies both the owner and operator
and the director by certified mail or any other form of mail accompanied by a
receipt of a decision not to extend the expiration date. Under the terms of the
letter of credit, the one hundred twenty day period shall begin on the day when
both the owner or operator and the director have received the notice, as
evidenced by the return receipts.
(6) The letter of credit shall be issued in
an amount at least equal to the current closure cost estimate, or the scrap
tire transporter closure cost estimate except as provided in paragraph (M) of
this rule.
(7) Whenever the current
closure cost estimate increases to an amount greater than the amount of the
credit, the owner or operator shall, not later than sixty days after the
increase, either cause the amount of the credit to be increased to an amount at
least equal to the current closure cost estimate and submit evidence of such
increase to the director and into the
operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable, or obtain alternative
financial assurance, as specified in this rule, to compensate for the increase.
Whenever the current closure cost estimate decreases, the letter of credit may
be reduced to the amount of the current closure cost estimate following written
approval by the director. Notice of an increase or a proposed decrease in the
amount of the letter of credit shall be sent to the director by certified mail
or any other form of mail accompanied by a receipt not later than sixty days
after the change.
(8) Under the
terms of the letter of credit, the director may draw on the letter of credit
following a determination that the owner or operator has failed to do the
following:
(a) For a solid waste facility,
perform closure in accordance with the closure/post-closure care plan, permit
or registration requirements, and applicable rules.
(b) For a scrap
tire transporter the following, as applicable:
(i) Remove and properly dispose of any scrap
tires which have been open dumped by the scrap tire transporter.
(ii) Comply with rule
3745-27-79
of the Administrative Code.
(iii)
To cover the owner or operator's liability for sudden, accidental
occurrences that result in damage or injury to persons or property or to the
environment.
(c) Provide
alternative financial assurance as specified in this
rule and obtain written approval of such alternative
financial assurance from the director not later than ninety days after the
owner and operator and the director have received notice from the issuing
institution that it will not extend the letter of credit beyond the current
expiration date. The director shall draw on
the letter of credit and may delay the drawing if the issuing institution
grants an extension of the term of the credit. During the thirty days of any
such extension the director shall draw on the letter of credit if the owner or
operator has failed to provide alternative
financial assurance as specified in this rule and has failed to obtain written
approval of such alternative financial assurance from the
director.
(9) The director
shall return the original letter of credit to the issuing institution for
termination when either of the following occur:
(a) The owner or operator substitutes
alternative financial assurance for closure of a
facility or a scrap tire transporter as specified in this rule.
(b) The director notifies the owner or
operator, in accordance with paragraph (O) of this rule, that the owner or operator is no longer required to
maintain financial assurance for closure of a facility or a scrap tire
transporter.
(J)
Closure insurance.
(1) The owner or operator
may satisfy the requirements of this rule by obtaining closure insurance which
conforms to this paragraph and by submitting an originally signed certificate
of such insurance to the director by certified mail or any other form of mail
accompanied by a receipt within the time period outlined in paragraphs (A) and
(B) of this rule, and if the facility is a sanitary landfill facility, by
submitting a copy of the certificate of insurance into the operating record
in accordance with rule
3745-27-09
of the Administrative Code. At a minimum, the insurer shall be licensed to
transact the business of insurance, or eligible to provide insurance as an
excess or surplus lines insurer, in one or more states.
(2) The wording of the certificate of
insurance shall be identical to the wording specified in paragraph (E) of rule
3745-27-17
of the Administrative Code on forms prescribed by the director.
(3) The closure insurance policy shall be
issued for a face amount at least equal to the current closure cost estimate or
the scrap tire transporter cost estimate, except as provided in paragraph (M)
of this rule. Face amount means the total amount the insurer is obligated to
pay under the policy. Actual payments by the insurer will not change the face
amount, although the insurer's future liability will be lowered by the amount
of the payments.
(4) The closure
insurance policy shall guarantee that funds will be available to close the
facility whenever closure is mandated. The policy shall also guarantee that
once closure begins, the insurer will be responsible for paying out funds, up
to an amount equal to the face amount of the policy, upon the direction of the
director, to such party or parties as the director specifies.
(5) The scrap tire transporter insurance
policy shall guarantee that funds will be available to perform the authorized
closure activities whenever such activities are mandated. The policy shall also
guarantee that once such activities begin, the insurer will be responsible for
paying out funds, up to an amount equal to the face amount of the policy, upon
the direction of the director, to such party or parties as the director
specifies.
(6) Reimbursement for
closure.The
owner or operator, or
any other person authorized by the owner, operator, or director to perform
closure, may request reimbursement for closure expenditures by submitting
itemized bills to the director. After receiving itemized bills for closure
activities, the director shall determine whether the closure expenditures are
in accordance with the closure/post-closure care plan, permit or registration
requirements, and applicable rules, or are otherwise justified, and if so,
shall instruct the insurer to make reimbursement in such amounts as the
director specifies in writing. If the director has reason to believe that the
cost of closure will be greater than the face amount of the policy, the
director may withhold reimbursement of such amounts as the director deems
prudent until the director determines, in accordance with paragraph (O) of this
rule that the owner or operator is no longer required to maintain financial
assurance for closure of the facility or scrap tire transporter.
(7) The owner or operator shall
maintain the policy in full force and effect until the director consents to
termination of the policy by the owner or operator as specified in paragraph
(J)(11)
of this rule. Failure to pay the premium, without substitution of
alternative financial assurance as specified in this
rule,
constitutes a violation of these rules,
warranting such remedy as the director deems necessary. Such violation shall be
deemed to begin upon receipt by the director of a notice of future
cancellation, termination, or failure to renew due to nonpayment of the
premium, rather than upon the date of expiration.
(8) Each policy shall contain a provision
allowing assignment of the policy to a successor owner or operator. Such
assignment may be conditional upon consent of the insurer, provided such
consent is not unreasonably refused.
(9) The policy shall provide that the insurer
may not cancel, terminate, or fail to renew the policy except for failure to
pay the premium. At a minimum, the automatic renewal of the policy
shall provide the insured with
the option of renewal at the face amount of the expiring policy. If there is a
failure to pay the premium, the insurer may elect to cancel, terminate, or fail
to renew the policy by sending notice by certified mail or any other form of
mail accompanied by a receipt to the owner or operator and to the director.
Cancellation, termination, or failure to renew may not occur
and the policy will remain in full force and effect,
if the following occurs on or before the date of
expiration:
(a) For a solid waste facility,
any activities required by the closure/ post-closure care plan, permit or
registration requirements, and applicable rules have not been
completed.
(b) For a scrap
tire transporter, a determination
that the owner or operator has failed to perform the closure activities
specified in the registration requirements and applicable rules.
(c) Closure of the facility is ordered by the
director or a court of competent jurisdiction, or characterization and
remediation in accordance with rule
3745-27-79
of the Administrative Code is ordered by the director or a court of competent
jurisdiction.
(d) The owner or
operator is named as debtor in a voluntary or involuntary proceeding under
title 11 (bankruptcy), U.S. Code.
(e) The premium due is
paid.
(10) Whenever the
current closure cost estimate increases to an amount greater than the face
amount of the policy, the owner or operator shall, not later than sixty days
after the increase, either cause the face amount to be increased to an amount
at least equal to the current closure cost estimate and submit evidence of such
increase to the director, and into the operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable, or obtain alternative
financial assurance as specified in this rule to compensate for the increase.
Whenever the current closure cost estimate decreases, the face amount may be
reduced to the amount of the current closure cost estimate following written
approval by the director.
(11) The
director may give written consent to the owner or operator that
owner or operator may terminate the insurance policy when either of the
following occurs:
(a) The owner or operator
substitutes alternative financial assurance for closure of a
facility or a scrap tire transporter as specified in this rule.
(b) The director notifies the owner or
operator, in accordance with paragraph (O) of this rule that the owner or
operator is no longer required to maintain financial assurance for closure of a
facility or a scrap tire transporter.
(K) Financial test and corporate guarantee
for closure of a solid waste facility or a scrap tire transporter.
(1) The owner or operator may satisfy this
rule by demonstrating that the owner or operator passes a financial test as
specified in this paragraph. To pass this test the owner or operator shall
demonstrate that less than fifty per cent of the parent corporation's gross
revenues are derived from solid waste disposal, solid waste transfer facility
operations, or scrap tire transporter, or if there is no parent corporation,
the owner or operator shall demonstrate that less than fifty per cent of its
gross revenues are derived from solid waste facility,
solid waste transfer facility, or scrap
tire transporter operations and shall satisfy
either of the following:
(a) The owner or operator shall have the
following:
(i) Satisfaction of at least two of
the following ratios: a ratio of total liabilities to net worth less than 2.0;
a ratio of the sum of net income plus depreciation, depletion, and amortization
minus ten
million dollars to total liabilities greater than
0.1; a ratio of current assets to current liabilities greater than
1.5.
(ii) Net working capital and
tangible net worth each at least six times the sum of the current closure and
current post-closure care cost estimates, scrap tire transporter closure cost
estimates, any corrective measures cost estimates, and any other obligations
assured by a financial test.
(iii)
Tangible net worth of at least ten million dollars.
(iv) Assets in the United States amounting to
at least ninety per cent of total assets or at least six times the sum of the
current and current post-closure care cost estimates, scrap tire transporter
closure cost estimates, any current corrective measures cost estimates, and any
other assured by a financial test.
(b) The owner or operator shall have the
following:
(i) Issued a corporate bond for
which the owner or operator, as the issuing entity, has not received a current
rating of less than BBB as issued by "Standard and Poor's" or Baa as issued by
"Moody's." Owners or operators using bonds that are secured by collateral or a
guarantee shall meet the minimum rating without that
security.
(ii) Tangible net worth at
least six times the sum of the current closure
and current post-closure care cost estimates, scrap tire transporter
closure cost estimates, any corrective measures cost estimates, and any other
obligations assured by a financial test.
(iii) Tangible net worth of at least ten
million dollars.
(iv) Assets in the
United States amounting to at least ninety per cent of total assets or at least
six times the sum of the current closure and
current post-closure care cost estimates, scrap tire transporter closure cost
estimates, any current corrective measures cost estimates, and any other
obligations assured by a financial test.
(2) Current closure and current post-closure
care cost estimates, scrap tire transporter closure cost estimates, any current
corrective measures cost estimates, and any other obligations assured by a
financial test as used in paragraph (K)(1) of this rule refers to the cost
estimates required to be shown in the letter from the owner's or operator's
chief financial officer.
(3) To
demonstrate that requirements of this test are met, the owner or operator shall
submit the following items to the director, and into the operating record in
accordance with rule
3745-27-09
of the Administrative Code, if applicable:
(a) A letter signed by the owner's or
operator's chief financial officer and worded as specified in paragraph (F) of
rule
3745-27-17
of the Administrative Code on forms prescribed by the director.
(b) A copy of a report by an independent
certified public accountant examining the owner's or the operator's financial
statements for the most recently completed fiscal year.
(c) A special report from the owner's or the
operator's independent certified public accountant, in the form of an
agreed-upon procedures report, to the owner or operator stating the following:
(i) The independent certified public
accountant has compared the data which the letter from the chief financial
officer specifies as having been derived from the independently audited
year-end financial statements for the most recent fiscal year with the amounts
in such financial statements.
(ii)
In connection with the agreed-upon procedures report, the independent certified
public accountant states that the independent certified public accountant
agrees the specified data is accurate.
(4) After the initial submission of the items
specified in paragraph (K)(3) of this rule, the owner or operator shall send
updated information to the director, and submit updated information into the
operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable, not later than ninety days after the
close of each succeeding fiscal year. This information shall include all three
items specified in paragraph (K)(3) of this rule.
(5) If the owner or operator no longer meets
paragraph (K)(1) of this rule, notice shall be sent to the director of the
intent to establish alternative financial assurance as specified in this
rule. The notice must be sent by certified mail or any other form of mail
accompanied by a receipt not later than ninety days after the end of the fiscal
year for which the year-end financial data show that the owner or operator no
longer meets the requirements. A copy of the notice shall also be placed in the
operating record, if applicable. The owner or operator shall provide
alternative financial assurance not later than one
hundred twenty days after the end of such fiscal year.
(6) The director may, based on a reasonable
belief that the owner or operator no longer meets paragraph (K)(1) of this
rule, require reports of financial condition at any time from the owner or
operator in addition to those specified in paragraph (K)(3) of this rule. If
the director finds, on the basis of such reports or other information, that the
owner or operator no longer meets the requirements of paragraph (K)(1) of this
rule, the owner or operator shall provide alternative
financial assurance as specified in this rule not later than thirty days after
notification of such a finding.
(7)
The director may disallow use of this test on the basis of qualifications in
the opinion expressed by the independent certified public accountant in the
report on examination of the owner's or operator's financial statements. An
adverse opinion or disclaimer of opinion will be cause for disallowance. The
director shall evaluate other qualifications on an individual basis. The owner
or operator shall provide alternative financial assurance as specified in this
rule not later than thirty days after notification of the
disallowance.
(8) The owner or
operator is no longer required to submit the items specified in paragraph
(K)(3) of this rule when either of the following occur:
(a) The owner or operator substitutes
alternative financial assurance for closure of a
facility or a scrap tire transporter as specified in this rule.
(b) The director notifies the owner or
operator, in accordance with paragraph (O) of this rule that the owner or
operator is no longer required to maintain financial assurance for closure of a
facility or scrap tire transporter.
(9) The owner or operator may meet this rule
by obtaining a written guarantee, hereafter referred to as a corporate
guarantee. The guarantor shall be the parent corporation of the owner or
operator. The guarantor shall meet the requirements for an owner or operator in
paragraphs (K)(1) to (K)(7) of this rule and shall comply with the terms of the
corporate guarantee. The wording of the corporate guarantee shall be identical
to the wording specified in paragraph (G) of rule
3745-27-17
of the Administrative Code on forms prescribed by the director. The corporate
guarantee shall accompany the items sent to the director as specified in
paragraph (K)(3) of this rule. The terms of the corporate guarantee shall
provide the following:
(a) The owner or
operator shall perform closure of a facility or scrap tire transporter provided
for by the corporate guarantee in accordance with the closure/post-closure care
plan, permit or registration requirements, and applicable rules.
(b) The guarantor shall perform the
activities in paragraph (K)(9)(a) of this rule or shall establish a trust fund
in the name of the owner or operator as specified in paragraph (F) of this rule
if the owner or operator fails to perform those activities.
(c) The corporate guarantee shall remain in
force unless the guarantor sends notice of cancellation by certified mail or
any other form of mail accompanied by a receipt to the owner or operator and to
the director. Cancellation may not occur, however, during the one hundred
twenty day period beginning on the first day that both the owner or operator
and the director have received notice of cancellation, as evidenced by the
return receipts.
(d) If the owner or
operator fails to provide alternative financial assurance as specified in this
rule, and fails to obtain the written approval of such
alternative financial assurance from the director not
later than ninety days after both the owner or operator and the director have
received notice of cancellation of the corporate guarantee from the guarantor,
the guarantor shall provide such alternative
financial assurance in the name of the owner or
operator.
(L)
Local government financial test for closure.
(1) For the purposes of this rule,
"local government"
means a subdivision of the state of Ohio including but not limited to a
municipal corporation, a county, a township, a single or joint county solid
waste management district, or a solid waste management authority.
(2) A local government may satisfy
the requirements of this rule by demonstrating
that the local government passes a financial test as specified in this
paragraph. This test consists of a financial component, a public notice
component, and a recordkeeping and reporting component. In order to satisfy the
financial component of the test, a local government shall meet the
following criteria:
(a) A local government's
financial statements shall be prepared in accordance with
generally accepted accounting
principles for local governments available from
the financial accounting standards board.
(b) A local government shall not have
operated at a deficit equal to five per cent or more of total annual revenue in
either of the past two fiscal years.
(c) A local government shall not currently be
in default on any outstanding general obligation bonds.
(d) A local government shall not have any
outstanding general obligation bonds rated lower than BBB as issued by
"Standard and Poor's" or Baa as issued by "Moody's." Local governments using
bonds that are secured by collateral or a guarantee shall meet the minimum
rating without that security.
(3)
a local government shall satisfy either of
the following :
(a) A local government shall
demonstrate the following:
(i) A ratio of cash plus marketable
securities to total expenditures greater than or equal to 0.05.
(ii) A ratio of annual debt service to total
expenditures less than or equal to 0.20.
(iii) A ratio of long term debt issued and
outstanding to capital expenditures less than or equal to 2.00.
(iv) A ratio of the current cost estimates
for closure, post-closure care, corrective measures, scrap tire transporter
closure, and any other obligations assured by a financial test, to total
revenue less than or equal to 0.43.
(b) The local government shall
demonstrate the following:
(i) Outstanding general obligation bonds for
which the local government, as the issuing entity, has not received a current
rating of less than BBB as issued by "Standard and Poor's" or Baa as issued by
"Moody's." Local governments using bonds that are secured by collateral or a
guarantee shall meet the minimum rating without that security.
(ii) A ratio of the current cost estimates
for closure, post-closure care, corrective measures, scrap tire transporter
closure, and any other obligations assured by a financial test, to total
revenue less than or equal to 0.43.
(4) In order to satisfy the public notice
component of the test, a local government shall in each year that the test is
used, identify the current cost estimates in either its budget or its
comprehensive annual financial report. The facility covered, the categories of
expenditures, including closure, post-closure care, corrective measures, scrap
tire transporter closure, the corresponding cost estimate for each expenditure,
and the anticipated year of the required activity must be recorded. If the
financial assurance obligation is to be included in the budget, it should
either be listed as an approved budgeted line item, if the obligation will
arise during the budget period, or in an appropriate supplementary data
section, if the obligation will not arise during the budget period. If the
information is to be included in the comprehensive annual financial report, it
is to be included in the financial section as a footnote to the annual
financial statements.
(5) To
demonstrate that the local government meets the requirements of this test, the
following shall be submitted to
the director, and into the operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable:
(a)
A letter signed by the local government's chief financial officer and worded as
specified in paragraph (H) of rule
3745-27-17
of the Administrative Code on forms prescribed by the director as follows:
(i) Lists all current cost estimates covered
by a financial test.
(ii) Certifies
that the local government meets the conditions of paragraph
(L)(2)
of this rule.
(iii) Provides
evidence and certifies that the local governments meets the conditions of
either paragraph (L)(3)(a) or (L)(3) (b)
of this rule.
(b) A copy
of the local government's independently audited year-end financial statements
for the latest fiscal year, including the unqualified opinion of the auditor.
The auditor must be an independent, certified public accountant or auditor of
state.
(c) A special report from the
independent certified public accountant or auditor of state, in the form of an
agreed-upon procedures report, to the local government stating the following:
(i) The independent certified public
accountant or auditor of state has compared the data which the letter from the
chief financial officer specifies as having been derived from the independently
audited year-end financial statements for the most recent fiscal year with the
amounts in such financial statements.
(ii) In connection with the agreed-upon
procedures report, that the independent certified public accountant
agrees the specified data is accurate.
(6) After the initial submission of the items
specified in this rule, a local government shall send updated information to
the director on forms prescribed by the director, and submit updated
information into the operating record in accordance with rule
3745-27-09
of the Administrative Code, if applicable, not later than one hundred eighty
days after the close of each succeeding fiscal year. This information shall
include all items specified in this rule.
(7) If a local government no longer meets the
requirements of this rule, notice shall be sent to the director of the intent
to establish alternative financial assurance as specified in this
rule. The notice must be sent by certified mail or any other form of mail
accompanied by a receipt not later than one hundred fifty days after the end of
the fiscal year for which the year-end financial data show that the local
government no longer meets the requirements. A copy of the notice shall also be
placed in the operating record, if applicable. The local government shall
provide alternative financial assurance not later than one
hundred eighty days after the end of such fiscal year.
(8) The director may, based on a reasonable
belief that the local government no longer meets the requirements of this rule,
require reports of financial condition at any time from the local government in
addition to those specified in this rule. If the director finds, on the basis
of such reports or other information, that the local government no longer meets
the requirements of this rule, the local government shall provide
alternative financial assurance as specified in this
rule not later than thirty days after notification of such a finding.
(9) The director may disallow use of this
test on the basis of qualifications in the opinion expressed by the independent
certified public accountant or auditor of state in the report on examination of
the local government's financial statements. An adverse opinion or disclaimer
of opinion will be cause for disallowance. The director shall evaluate other
qualifications on an individual basis. The local government shall provide
alternative financial assurance as specified in this
rule not later than thirty days after notification of the
disallowance.
(10) A local
government is no longer required to submit the items specified in this rule
when one of the following occur:
(a) The local
government substitutes alternative financial assurance for closure as
specified in this rule.
(b) The
director notifies the local government, in accordance with paragraph (O) of
this rule, that the local government is no longer required to maintain
financial assurance for closure of a facility or a scrap tire
transporter.
(M)
Use of multiple financial assurance mechanisms.The
owner or operator may
satisfy this rule by establishing more than one financial assurance mechanism
for each facility or by establishing more than one financial assurance
mechanism for scrap tire transporter financial assurance. These mechanisms are
limited to a trust fund, surety bond guaranteeing payment into a closure trust
fund, letter of credit, insurance, and the local government financial test. The
mechanisms shall be as specified in paragraphs (F), (G), (I), (J), and (L)
respectively of this rule, except that it is the combination of mechanisms,
rather than each single mechanism, which shall provide financial assurance for
an amount at least equal to the current closure cost estimate or scrap tire
transporter closure cost estimate. If an owner or operator uses a trust fund in
combination with a surety bond or a letter of credit, The owner or operator may use the trust fund as the
standby trust fund for the other mechanisms. A single standby trust fund may be
established for two or more mechanisms. The director may invoke use of any or
all of the mechanisms, in accordance with paragraphs (F), (G), (I), (J), and
(L) of this rule, to provide for closure of the facility or provide for the
required closure for a scrap tire transporter.
(N) Use of a financial assurance mechanism
for multiple facilities.The
owner or operator may
use a financial assurance mechanism specified in this rule to meet this rule
for more than one facility. Evidence of financial assurance submitted to the
director shall include a list showing, for each facility, the name, address,
and the amount of funds for closure assured by the financial assurance
mechanism. The amount of funds available through the financial assurance
mechanism shall be no less than the sum of the funds that would be available if
a separate financial assurance mechanism had been established and maintained
for each facility.
(O)
Release of the owner or operator of a solid waste facility or scrap tire
transporter from this rule. The
director shall notify
the owner or operator in writing that the owner or operator is no longer
required by this rule to maintain financial assurance for closure of
the particular facility or scrap tire transporter, unless the director has
reason to believe that closure has not been completed in accordance with
Chapter 3745-27 or 3745-30 of the
Administrative Code, as applicable, or the closure/post-closure care plan after
receiving certifications from the owner or operator and an independent
professional skilled in the appropriate disciplines that closure has been
completed in accordance with the final closure/post-closure care plan, permit
or registration requirements, and applicable rules.
[Comment: The notice releases the owner or operator only from
the requirements for financial assurance for closure of the facility; it does
not release the owner or operator from legal responsibility for meeting the
post-closure care standards or corrective measures, if applicable.]