Current through Bulletin 2024-06, March 15, 2024
As provided in Subsection
R315-261-4(a)(24)(vi)(F),
an owner or operator of a reclamation or intermediate facility shall have
financial assurance as a condition of the exclusion as required under
Subsection
R315-261-4(a)(24).
He shall choose from the options as specified in Subsections R315-261-143(a)
through (e).
(a) Trust fund.
(1) An owner or operator may satisfy the
requirements of Section R315-261-143 by establishing a trust fund which
conforms to the requirements of Subsection R315-261-143(a) and submitting an
originally signed duplicate of the trust agreement to the Director. The trustee
shall be an entity which 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 Subsection
R315-261-151(a)(1),
and the trust agreement shall be accompanied by a formal certification of
acknowledgment, for example, see Subsection
R315-261-151(a)(2).
Schedule A of the trust agreement shall be updated within 60 days after a
change in the amount of the current cost estimate covered by the
agreement.
(3) The trust fund shall
be funded for the full amount of the current cost estimate before it may be
relied upon to satisfy the requirements of Section R315-261-143.
(4) Whenever the current cost estimate
changes, the owner or operator shall compare the new estimate with the
trustee's most recent annual valuation of the trust fund. If the value of the
fund is less than the amount of the new estimate, the owner or operator, within
60 days after the change in the cost estimate, shall either deposit an amount
into the fund so that its value after this deposit at least equals the amount
of the current cost estimate, or obtain other financial assurance as specified
in Section R315-261-143 to cover the difference.
(5) If the value of the trust fund is greater
than the total amount of the current cost estimate, the owner or operator may
submit a written request to the Director for release of the amount in excess of
the current cost estimate.
(6) If
an owner or operator substitutes other financial assurance as specified in
Section R315-261-143 for all or part of the trust fund, he may submit a written
request to the Director for release of the amount in excess of the current cost
estimate covered by the trust fund.
(7) Within 60 days after receiving a request
from the owner or operator for release of funds as specified in Subsections
R315-261-143(a)(5) or (6), the Director shall instruct the trustee to release
to the owner or operator such funds as the Director specifies in writing. If
the owner or operator begins final closure under Sections
R315-264-110
through 120 or
40 CFR
265.110 through 121, which is adopted by
reference; an owner or operator may request reimbursements for partial or final
closure expenditures by submitting itemized bills to the Director. The owner or
operator may request reimbursements for partial closure only if sufficient
funds are remaining in the trust fund to cover the maximum costs of closing the
facility over its remaining operating life. No later than 60 days after
receiving bills for partial or final closure activities, the Director shall
instruct the trustee to make reimbursements in those amounts as the Director
specifies in writing, if the Director determines that the partial or final
closure expenditures are in accordance with the approved closure plan, or
otherwise justified. If the Director has reason to believe that the maximum
cost of closure over the remaining life of the facility will be significantly
greater than the value of the trust fund, he may withhold reimbursements of
such amounts as he deems prudent until he determines, in accordance with
40 CFR
265.143(i), which is adopted
by reference, that the owner or operator is no longer required to maintain
financial assurance for final closure of the facility. If the Director does not
instruct the trustee to make such reimbursements, he shall provide to the owner
or operator a detailed written statement of reasons.
(8) The Director shall agree to termination
of the trust when:
(i) An owner or operator
substitutes alternate financial assurance as specified in Section R315-261-143;
or
(ii) The Director releases the
owner or operator from the requirements of Section R315-261-143 in accordance
with Subsection R315-261-143(i).
(b) Surety bond guaranteeing payment into a
trust fund.
(1) An owner or operator may
satisfy the requirements of Section R315-261-143 by obtaining a surety bond
which conforms to the requirements of Subsection R315-261-143(b) and submitting
the bond to the Director. The surety company issuing the bond shall, at a
minimum, be among those listed as acceptable sureties on Federal bonds in
Circular 570 of the U.S. Department of the Treasury.
(2) The wording of the surety bond shall be
identical to the wording specified in Subsection
R315-261-151(b).
(3) The owner or operator who uses a surety
bond to satisfy the requirements of Section R315-261-143 shall also establish a
standby trust fund. Under the terms of the bond, all payments made thereunder
shall be deposited by the surety directly into the standby trust fund in
accordance with instructions from the Director. This standby trust fund shall
meet the requirements specified in Subsection R315-261-143(a), except that:
(i) An originally signed duplicate of the
trust agreement shall be submitted to the Director with the surety bond; and
(ii) Until the standby trust fund
is funded pursuant to the requirements of Section R315-261-143, the following
are not required by these regulations:
(A)
Payments into the trust fund as specified in Subsection R315-261-143(a);
(B) Updating of Schedule A of the
trust agreement, see Subsection R315-261.151(a), to show current cost
estimates;
(C) Annual valuations as
required by the trust agreement; and
(D) Notices of nonpayment as required by the
trust agreement.
(4) The bond shall guarantee that the owner
or operator shall:
(i) Fund the standby trust
fund in an amount equal to the penal sum of the bond before loss of the
exclusion under Subsection
R315-261-4(a)(24)
or
(ii) Fund the standby trust fund
in an amount equal to the penal sum within 15 days after an administrative
order to begin closure issued by the Director becomes final, or within 15 days
after an order to begin closure is issued by a U.S. district court or other
court of competent jurisdiction; or
(iii) Provide alternate financial assurance
as specified in Section R315-261-143, and obtain the Director's written
approval of the assurance provided, within 90 days after receipt by both the
owner or operator and the Director of a notice of cancellation of the bond from
the surety.
(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 cost estimate, except as provided in
Subsection R315-261-143(f).
(7)
Whenever the current cost estimate increases to an amount greater than the
penal sum, the owner or operator, within 60 days after the increase, shall
either cause the penal sum to be increased to an amount at least equal to the
current cost estimate and submit evidence of such increase to the Director, or
obtain other financial assurance as specified in Section R315-261-143 to cover
the increase. Whenever the current cost estimate decreases, the penal sum may
be reduced to the amount of the current cost estimate following written
approval by the Director.
(8) Under
the terms of the bond, the surety may cancel the bond by sending notice of
cancellation by certified mail to the owner or operator and to the Director.
Cancellation may 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
Director, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond
if the Director has given prior written consent based on his receipt of
evidence of alternate financial assurance as specified in Section R315-261-143.
(c) Letter of credit.
(1) An owner or operator may satisfy the
requirements of Section R315-261-143 by obtaining an irrevocable standby letter
of credit which conforms to the requirements of Subsection R315-261-143(c) and
submitting the letter to the Director. 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 Subsection
R315-261-151(c).
(3) An owner or operator who uses a letter of
credit to satisfy the requirements of Section R315-261-143 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 by the issuing
institution directly into the standby trust fund in accordance with
instructions from the Director. This standby trust fund shall meet the
requirements of the trust fund specified in Subsection R315-261-143(a), except
that:
(i) An originally signed duplicate of
the trust agreement shall be submitted to the Director with the letter of
credit; and
(ii) Unless the standby
trust fund is funded pursuant to the requirements of Section R315-261-143, the
following are not required by these regulations:
(A) Payments into the trust fund as specified
in Subsection R315-261-143(a);
(B)
Updating of Schedule A of the trust agreement, see Subsection
R315-261-151(a),
to show current cost estimates;
(C) Annual valuations as required by the
trust agreement; and
(D) 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 EPA Identification Number, if any issued; name; and address of the
facility; and the amount of funds assured for the facility by the letter of
credit.
(5) The letter of credit
shall be irrevocable and issued for a period of at least 1 year. The letter of
credit shall provide that the expiration date shall be automatically extended
for a period of at least 1 year unless, at least 120 days before the current
expiration date, the issuing institution notifies both the owner or operator
and the Director by certified mail of a decision not to extend the expiration
date. Under the terms of the letter of credit, the 120 days will begin on the
date 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 cost estimate, except as provided in
Subsection R315-261-143(f).
(7)
Whenever the current cost estimate increases to an amount greater than the
amount of the credit, the owner or operator, within 60 days after the increase,
shall either cause the amount of the credit to be increased so that it at least
equals the current cost estimate and submit evidence of such increase to the
Director, or obtain other financial assurance as specified in Section
R315-261-143 to cover the increase. Whenever the current cost estimate
decreases, the amount of the credit may be reduced to the amount of the current
cost estimate following written approval by the Director.
(8) Following a determination by the Director
that the hazardous secondary materials do not meet the conditions of the
exclusion under Subsection
R315-261-4(a)(24),
the Director may draw on the letter of credit.
(9) If the owner or operator does not
establish alternate financial assurance as specified in Section R315-261-143
and obtain written approval of such alternate assurance from the Director
within 90 days after receipt by both the owner or operator and the Director of
a notice from the issuing institution that it has decided not to extend the
letter of credit beyond the current expiration date, the Director shall draw on
the letter of credit. The Director may delay the drawing if the issuing
institution grants an extension of the term of the credit. During the last 30
days of any such extension the Director shall draw on the letter of credit if
the owner or operator has failed to provide alternate financial assurance as
specified in Section R315-261-143 and obtain written approval of such assurance
from the Director.
(10) The
Director shall return the letter of credit to the issuing institution for
termination when:
(i) An owner or operator
substitutes alternate financial assurance as specified in Section R315-261-143;
or
(ii) The Director releases the
owner or operator from the requirements of Section R315-261-143 in accordance
with Subsection R315-261-143(i).
(d) Insurance.
(1) An owner or operator may satisfy the
requirements of Section R315-261-143 by obtaining insurance which conforms to
the requirements of Subsection R315-261-143(d) and submitting a certificate of
such insurance to the Director. 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 Utah.
(2) The wording of the certificate of
insurance shall be identical to the wording specified in Subsection
R315-261-151(d).
(3) The insurance policy shall be issued for
a face amount at least equal to the current cost estimate, except as provided
in subsection R315-261-143(f). The term "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 shall be lowered by the amount of the payments.
(4) The insurance policy shall guarantee that
funds shall be available whenever needed to pay the cost of removal of all
hazardous secondary materials from the unit, to pay the cost of decontamination
of the unit, to pay the costs of the performance of activities required under
Sections
R315-264-110
through 120 or
40 CFR
265.110 through 121, which is adopted by
reference; as applicable, for the facilities covered by this policy. The policy
shall also guarantee that once funds are needed, the insurer shall 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) After
beginning partial or final closure under Rules R315-264 or 265, as applicable,
an owner or operator or any other authorized person may request reimbursements
for closure expenditures by submitting itemized bills to the Director. The
owner or operator may request reimbursements only if the remaining value of the
policy is sufficient to cover the maximum costs of closing the facility over
its remaining operating life. Within 60 days after receiving bills for closure
activities, the Director shall instruct the insurer to make reimbursements in
such amounts as the Director specifies in writing if the Director determines
that the expenditures are in accordance with the approved plan or otherwise
justified. If the Director has reason to believe that the maximum cost over the
remaining life of the facility will be significantly greater than the face
amount of the policy, he may withhold reimbursement of such amounts as he deems
prudent until he determines, in accordance with Subsection R315-261-143(h),
that the owner or operator is no longer required to maintain financial
assurance for the particular facility. If the Director does not instruct the
insurer to make such reimbursements, he shall provide to the owner or operator
a detailed written statement of reasons.
(6) 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 Subsection
R315-261-143(i)(10). Failure to pay the premium, without substitution of
alternate financial assurance as specified in Section R315-261-143, shall
constitute a significant violation of these regulations 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.
(7) 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.
(8) The policy shall provide that the insurer
may not cancel, terminate, or fail to renew the policy except for failure to
pay the premium. The automatic renewal of the policy shall, at a minimum,
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 to the owner or operator and the Director. Cancellation,
termination, or failure to renew may not occur, however, during the 120 days
beginning with the date of receipt of the notice by both the Direcotr and the
owner or operator, as evidenced by the return receipts. Cancellation,
termination, or failure to renew may not occur and the policy shall remain in
full force and effect in the event that on or before the date of expiration:
(i) The Director deems the facility
abandoned; or
(ii) Conditional
exclusion or interim status is lost, terminated, or revoked; or
(iii) Closure is ordered by the Director or a
U.S. district court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor
in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S.
Code; or
(v) The premium due is
paid.
(9) Whenever the
current cost estimate increases to an amount greater than the face amount of
the policy, the owner or operator, within 60 days after the increase, shall
either cause the face amount to be increased to an amount at least equal to the
current cost estimate and submit evidence of such increase to the Director, or
obtain other financial assurance as specified in Section R315-261-143 to cover
the increase. Whenever the current cost estimate decreases, the face amount may
be reduced to the amount of the current cost estimate following written
approval by the Director.
(10) The
Director shall give written consent to the owner or operator that he may
terminate the insurance policy when:
(i) An
owner or operator substitutes alternate financial assurance as specified in
Section R315-261-143; or
(ii) The
Director releases the owner or operator from the requirements of Section
R315-261-143 in accordance with Subsection R315-261-143(i).
(e) Financial test and
corporate guarantee.
(1) An owner or operator
may satisfy the requirements of Section R315-261-143 by demonstrating that he
passes a financial test as specified in Subsection R315-261-143(e). To pass
this test the owner or operator shall meet the criteria of either Subsections
R315-261-143(e)(1)(i) or (ii):
(i) The owner
or operator shall have:
(A) Two of the
following three 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 to total liabilities greater than 0.1; and a ratio of current
assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net
worth each at least six times the sum of the current cost estimates and the
current plugging and abandonment cost estimates; and
(C) Tangible net worth of at least >0
million; and
(D) Assets located in
the United States amounting to at least 90 percent of total assets or at least
six times the sum of the current cost estimates and the current plugging and
abandonment cost estimates.
(ii) The owner or operator shall have:
(A) A current rating for his most recent bond
issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A,
or Baa as issued by Moody's; and
(B) Tangible net worth at least six times the
sum of the current cost estimates and the current plugging and abandonment cost
estimates; and
(C) Tangible net
worth of at least >0 million; and
(D) Assets located in the United States
amounting to at least 90 percent of total assets or at least six times the sum
of the current cost estimates and the current plugging and abandonment cost
estimates.
(2)
The phrase "current cost estimates" as used in Subsection R315-261-143(e)(1)
refers to the cost estimates required to be shown in paragraphs 1-4 of the
letter from the owner's or operator's chief financial officer, Subsection
R315-261-151(e).
The phrase "current plugging and abandonment cost estimates" as used in
Subsection R315-261-143(e)(1) refers to the cost estimates required to be shown
in paragraphs 1-4 of the letter from the owner's or operator's chief financial
officer,
40 CFR
144.70(f).
(3) To demonstrate that he meets this test,
the owner or operator shall submit the following items to the Director:
(i) A letter signed by the owner's or
operator's chief financial officer and worded as specified in Subsection
R315-261-151(e);
and
(ii) A copy of the independent
certified public accountant's report on examination of the owner's or
operator's financial statements for the latest completed fiscal year;
and
(iii) If the chief financial
officer's letter providing evidence of financial assurance includes financial
data showing that the owner or operator satisfies Subsection
R315-261-143(e)(1)(i) that are different from the data in the audited financial
statements referred to in Subsection R315-261-143(e)(3)(ii) or any other
audited financial statement or data filed with the SEC, then a special report
from the owner's or operator's independent certified public accountant to the
owner or operator is required. The special report shall be based upon an agreed
upon procedures engagement in accordance with professional auditing standards
and shall describe the procedures performed in comparing the data in the chief
financial officer's letter derived from the independently audited, year-end
financial statements for the latest fiscal year with the amounts in such
financial statements, the findings of the comparison, and the reasons for any
differences.
(4) The
owner or operator may obtain an extension of the time allowed for submission of
the documents specified in Subsection R315-261-143(e)(3) if the fiscal year of
the owner or operator ends during the 90 days prior to the effective date of
these regulations and if the year-end financial statements for that fiscal year
shall be audited by an independent certified public accountant. The extension
shall end no later than 90 days after the end of the owner's or operator's
fiscal year. To obtain the extension, the owner's or operator's chief financial
officer shall send, by the effective date of these regulations, a letter to the
Director. This letter from the chief financial officer shall:
(i) Request the extension;
(ii) Certify that he has grounds to believe
that the owner or operator meets the criteria of the financial test;
(iii) Specify for each facility to be covered
by the test the EPA Identification Number, if any are issued; name; address;
and current cost estimates to be covered by the test;
(iv) Specify the date ending the owner's or
operator's last complete fiscal year before the effective date of Sections
R315-261-140
through 143 and
R315-261-147
through 151;
(v) Specify the date,
no later than 90 days after the end of such fiscal year, when he shall submit
the documents specified in Subsection R315-261-143(e)(3); and
(vi) Certify that the year-end financial
statements of the owner or operator for such fiscal year shall be audited by an
independent certified public accountant.
(5) After the initial submission of items
specified in Subsection R315-261-143(e)(3), the owner or operator shall send
updated information to the Director within 90 days after the close of each
succeeding fiscal year. This information shall consist of all three items
specified in Subsection R315-261-143(e)(3).
(6) If the owner or operator no longer meets
the requirements of Subsection R315-261-143(e)(1), he shall send notice to the
Director of intent to establish alternate financial assurance as specified in
Section R315-261-143. The notice shall be sent by certified mail within 90 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. The owner or
operator shall provide the alternate financial assurance within 120 days after
the end of such fiscal year.
(7)
The Director may, based on a reasonable belief that the owner or operator may
no longer meet the requirements of Subsection R315-261-143(e)(1), require
reports of financial condition at any time from the owner or operator in
addition to those specified in Subsection R315-261-143(e)(3). If the Director
finds, on the basis of such reports or other information, that the owner or
operator no longer meets the requirements of Subsection R315-261-143(e)(1), the
owner or operator shall provide alternate financial assurance as specified in
Section R315-261-143 within 30 days after notification of such a finding.
(8) The Director may disallow use
of this test on the basis of qualifications in the opinion expressed by the
independent certified public accountant in his report on examination of the
owner's or operator's financial statements, see Subsection
R315-261-143(e)(3)(ii). An adverse opinion or a disclaimer of opinion shall be
cause for disallowance. The Director shall evaluate other qualifications on an
individual basis. The owner or operator shall provide alternate financial
assurance as specified in Section R315-261-143 within 30 days after
notification of the disallowance.
(9) The owner or operator is no longer
required to submit the items specified in Subsection R315-261-143(e)(3) when:
(i) An owner or operator substitutes
alternate financial assurance as specified in Section R315-261-143; or
(ii) The Director releases the
owner or operator from the requirements of Section R315-261-143 in accordance
with Subsection R315-261-143(i).
(10) An owner or operator may meet the
requirements of Section R315-261-143 by obtaining a written guarantee. The
guarantor shall be the direct or higher-tier parent corporation of the owner or
operator, a firm whose parent corporation is also the parent corporation of the
owner or operator, or a firm with a "substantial business relationship" with
the owner or operator. The guarantor shall meet the requirements for owners or
operators in Subsections R315-261-143(e)(1) through (8) and shall comply with
the terms of the guarantee. The wording of the guarantee shall be identical to
the wording specified in Subsection
R315-261-151(g)(1).
A certified copy of the guarantee shall accompany the items sent to the
Director as specified in Subsection R315-261-143(e)(3). One of these items
shall be the letter from the guarantor's chief financial officer. If the
guarantor's parent corporation is also the parent corporation of the owner or
operator, the letter shall describe the value received in consideration of the
guarantee. If the guarantor is a firm with a "substantial business
relationship" with the owner or operator, this letter shall describe this
"substantial business relationship" and the value received in consideration of
the guarantee. The terms of the guarantee shall provide that:
(i) Following a determination by the Director
that the hazardous secondary materials at the owner or operator's facility
covered by this guarantee do not meet the conditions of the exclusion under
Subsection
R315-261-4(a)(24),
the guarantor shall dispose of any hazardous secondary material as hazardous
waste and close the facility in accordance with closure requirements found in
Rules R315-264 or 265, as applicable, or establish a trust fund as specified in
Subsection R315-261-143(a) in the name of the owner or operator in the amount
of the current cost estimate.
(ii)
The corporate guarantee shall remain in force unless the guarantor sends notice
of cancellation by certified mail to the owner or operator and to the Director.
Cancellation may 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
Director, as evidenced by the return receipts.
(iii) If the owner or operator fails to
provide alternate financial assurance as specified in Section R315-261-143 and
obtain the written approval of such alternate assurance from the Director
within 90 days after receipt by both the owner or operator and the Director of
a notice of cancellation of the corporate guarantee from the guarantor, the
guarantor shall provide such alternate financial assurance in the name of the
owner or operator.
(f) Use of multiple financial mechanisms. An
owner or operator may satisfy the requirements of Section R315-261-143 by
establishing more than one financial mechanism per facility. These mechanisms
are limited to trust funds, surety bonds, letters of credit, and insurance. The
mechanisms shall be as specified in Subsection R315-261-143(a) through (d),
except that it is the combination of mechanisms, rather than the single
mechanism, which shall provide financial assurance for an amount at least equal
to the current cost estimate. If an owner or operator uses a trust fund in
combination with a surety bond or a letter of credit, he 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 use any or all
of the mechanisms to provide for the facility.
(g) Use of a financial mechanism for multiple
facilities. An owner or operator may use a financial assurance mechanism
specified in Section R315-261-143 to meet the requirements of Section
R315-261-143 for more than one facility. Evidence of financial assurance
submitted to the Director shall include a list showing, for each facility, the
EPA Identification Number,if any issued; name; address; and the amount of funds
assured by the mechanism. In directing funds available through the mechanism
for any of the facilities covered by the mechanism, the Director may direct
only the amount of funds designated for that facility, unless the owner or
operator agrees to the use of additional funds available under the mechanism.
(h) Removal and Decontamination
Plan for Release
(1) An owner or operator of
a reclamation facility or an intermediate facility who wishes to be released
from his financial assurance obligations under Subsection
R315-261-4(a)(24)(vi)(F)
shall submit a plan for removing all hazardous secondary material residues to
the Director at least 180 days prior to the date on which he expects to cease
to operate under the exclusion.
(2)
The plan shall include, at least:
(A) For
each hazardous secondary materials storage unit subject to financial assurance
requirements under Subsection
R315-261-4(a)(24)(vi)(F),
a description of how all excluded hazardous secondary materials shall be
recycled or sent for recycling, and how all residues, contaminated containment
systems, liners, etc; contaminated soils; subsoils; structures; and equipment
shall be removed or decontaminated as necessary to protect human health and the
environment, and
(B) A detailed
description of the steps necessary to remove or decontaminate all hazardous
secondary material residues and contaminated containment system components,
equipment, structures, and soils including, but not limited to, procedures for
cleaning equipment and removing contaminated soils, methods for sampling and
testing surrounding soils, and criteria for determining the extent of
decontamination necessary to protect human health and the environment;
and
(C) A detailed description of
any other activities necessary to protect human health and the environment
during this timeframe, including, but not limited to, leachate collection,
run-on and run-off control, etc; and
(D) A schedule for conducting the activities
described which, at a minimum, includes the total time required to remove all
excluded hazardous secondary materials for recycling and decontaminate all
units subject to financial assurance under Subsection
R315-261-4(a)(24)(vi)(F)
and the time required for intervening activities which will allow tracking of
the progress of decontamination.
(3) The Director shall provide the owner or
operator and the public, through a newspaper notice, the opportunity to submit
written comments on the plan and request modifications to the plan no later
than 30 days from the date of the notice. He shall also, in response to a
request or at his discretion, hold a public hearing whenever such a hearing
might clarify one or more issues concerning the plan. The Director shall give
public notice of the hearing at least 30 days before it occurs. Public notice
of the hearing may be given at the same time as notice of the opportunity for
the public to submit written comments, and the two notices may be combined. The
Director shall approve, modify, or disapprove the plan within 90 days of its
receipt. If the Director does not approve the plan, he shall provide the owner
or operator with a detailed written statement of reasons for the refusal and
the owner or operator shall modify the plan or submit a new plan for approval
within 30 days after receiving such written statement. The Director shall
approve or modify this plan in writing within 60 days. If the Director modifies
the plan, this modified plan becomes the approved plan. The Director shall
assure that the approved plan is consistent with Subsection R315-261-143(h). A
copy of the modified plan with a detailed statement of reasons for the
modifications shall be mailed to the owner or operator.
(4) Within 60 days of completion of the
activities described for each hazardous secondary materials management unit,
the owner or operator shall submit to the Director, by registered mail, a
certification that all hazardous secondary materials have been removed from the
unit and the unit has been decontaminated in accordance with the specifications
in the approved plan. The certification shall be signed by the owner or
operator and by a qualified Professional Engineer. Documentation supporting the
Professional Engineer's certification shall be furnished to the Director, upon
request, until he releases the owner or operator from the financial assurance
requirements for Subsection
R315-261-4(a)(24)(vi)(F).
(i) Release of the owner or operator from the
requirements of Section R315-261-143. Within 60 days after receiving
certifications from the owner or operator and a qualified Professional Engineer
that all hazardous secondary materials have been removed from the facility or a
unit at the facility and the facility or a unit has been decontaminated in
accordance with the approved plan as required in Subsection R315-261-143(h),
the Director shall notify the owner or operator in writing that he is no longer
required under Subsection
R315-261-4(a)(24)(vi)(F)
to maintain financial assurance for that facility or a unit at the facility,
unless the Director has reason to believe that all hazardous secondary
materials have not been removed from the facility or unit at a facility or that
the facility or unit has not been decontaminated in accordance with the
approved plan. The Director shall provide the owner or operator a detailed
written statement of any such reason to believe that all hazardous secondary
materials have not been removed from the unit or that the unit has not been
decontaminated in accordance with the approved plan.