An owner or operator of each facility shall establish and
demonstrate to the Department financial assurance for closure of the facility.
The owner or operator shall choose from the options as specified in subsections
(a) through (e) and (h) of this section.
(a) Closure trust fund.
(1) An owner or operator may satisfy the
requirements of this section by establishing a closure trust fund which
conforms to the requirements of this subsection and submitting an originally
signed duplicate of the trust agreement to the Department. 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 section
66264.151, subsection (a)(1),
shall contain original signatures and shall be accompanied by a formal
certification of
acknowledgement (for example, see section
66264.151, subsection (a)(2)).
Schedule A of the trust agreement shall be updated within 60
days after a
change in the amount of the
current closure cost estimate covered by the trust
agreement.
(3) Payments into the
trust fund shall be made annually by the
owner or operator over the ten (10)
years beginning with the establishment of the trust fund or over the remaining
operating life of the facility as estimated in the
closure plan, whichever
period is shorter; this period is hereafter referred to as the "pay-in period."
The payments into the
closure trust fund shall be made as follows.
(A) The first payment shall be at least equal
to the current closure cost estimate, except as provided in subsection (f), of
this section divided by the number of years in the pay-in period.
(B) Subsequent payments shall be made no
later than 30
days after each anniversary date of the first payment. The amount
of each subsequent payment must be determined by this formula:
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.
(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. However, the value of the fund shall be maintained at no less than
the value that the fund would have if annual payments were made as specified in
subsection (a)(3) of this section.
(5) If the owner or operator establishes a
closure trust fund after having used one or more alternate mechanisms specified
in this section, the first payment shall be in at least the amount that the
fund would contain if the trust fund were established initially and annual
payments made as specified in subsection (a)(3) of this section.
(6) After the pay-in period is completed,
whenever the current closure 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 closure cost estimate,
or obtain other financial assurance as specified in this article to cover the
difference.
(7) If the value of the
trust fund is greater than the total amount of the current closure cost
estimate, the owner or operator may submit a written request to the Department
for release of the amount in excess of the current closure cost
estimate.
(8) If an owner or
operator substitutes other financial assurance as specified in this section for
all or part of the trust fund, a written request may be submitted to the
Department for release of the amount in excess of the current closure cost
estimate covered by the trust fund.
(9) Within 60 days after receiving a request
from the owner or operator for release of funds as specified in subsections
(a)(7) or (8) of this section, the Department will instruct the trustee to
release to the owner or operator such funds as the Department specifies in
writing.
(10) Before final closure
occurs, the value of the trust fund shall equal the amount of the current
closure cost estimate. If the value of the fund is less than the amount of the
current estimate, the owner or operator shall either deposit an amount into the
fund so that its value after this deposit at least equals the amount of the
current closure cost estimate, or obtain other financial assurance, as
specified in this section, to cover the difference.
(11) After beginning partial or final
closure, an owner or operator or another person authorized to conduct partial
or final closure may request reimbursements for partial or final closure
expenditures by submitting itemized bills to the Department. 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 Department shall
instruct the trustee to make reimbursements in those amounts as the Department
specifies in writing, if the Department determines that the partial or final
closure expenditures are in accordance with the approved closure plan, or
otherwise justified. If the Department 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, the Department may withhold
reimbursements of such amounts as deemed prudent until a determination is made,
in accordance with subsection (i) of this section, that the owner or operator
is no longer required to maintain financial assurance for final closure of the
facility. If the Department does not instruct the trustee to make such
reimbursements, a detailed written statement of reasons will be provided to the
owner or operator.
(12) The
Department will agree to termination of the trust when:
(A) an owner or operator substitutes
alternate financial assurance as specified in this section; or
(B) the Department releases the owner or
operator from the requirements in accordance with subsection (i) of this
section.
(b)
Surety bond guaranteeing payment into a
closure trust fund.
(1) An owner or operator may satisfy the
requirements of this section by obtaining a surety bond which conforms to the
requirements of this subsection and submitting the bond to the Department. 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 section
66264.151, subsection (b). The
surety bond shall contain original signatures and shall be accompanied by the
documents specified in this subsection.
(3) The
owner or operator who uses a surety
bond to satisfy the requirements of this section 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
Department. This standby trust fund shall meet the
requirements specified in subsection (a) of this section, except that:
(A) an originally signed duplicate of the
standby trust agreement shall be submitted to the Department with the surety
bond; and
(B) until the standby
trust fund is funded pursuant to the requirements of this section, the
following are not required by these regulations:
1. payments into the trust fund as specified
in subsection (a) of this section;
2. updating of Schedule A of the trust
agreement (see section
66264.151, subsection (a)) to show
current
closure cost estimates;
3.
annual valuations as required by the trust agreement; and
4. notices of nonpayment as required by the
trust agreement.
(4) The bond shall guarantee that the
owner
or operator shall:
(A) fund the standby trust
fund in an amount equal to the penal sum of the bond before the beginning of
final closure of the facility; or
(B) fund the standby trust fund in an amount
equal to the penal sum within 15 days after an administrative order to begin
final closure issued by the Department becomes final, or within 15 days after
an order to begin final closure is issued by a U.S. district court or other
court of competent jurisdiction; or
(C) provide alternate financial assurance as
specified in this section, and obtain the Department's written approval of the
assurance provided, within 90 days after receipt by both the owner or operator
and the Department 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. For
facilities that require a RCRA permit, the determination will be made pursuant
to Health and Safety Code Section
25187.
(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 subsection (f) of this section.
(7) Whenever the current closure 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 closure cost
estimate and submit evidence of such increase to the Department, or obtain
other financial assurance as specified in this section to cover 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 Department.
(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
Department. Cancellation shall not occur, however, during the 120 days
beginning on the date of receipt of the notice of cancellation by both the
owner or operator and the Department, as evidenced by the return
receipt.
(9) The owner or operator
may cancel the bond if the Department has given prior written consent based on
receipt of evidence of alternate financial assurance as specified in this
section.
(c) Closure
letter of credit.
(1) An owner or operator may
satisfy the requirements of this section by obtaining an irrevocable standby
letter of credit which conforms to the requirements of this subsection and
submitting the letter to the Department. 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 section
66264.151, subsection (d). The
letter of credit shall contain original signatures and shall be accompanied by
the documents specified in this subsection.
(3) An
owner or operator who uses a letter of
credit to satisfy the requirements of this section shall also establish a
standby trust fund. Under the terms of the letter of credit, all amounts paid
pursuant to a draft by the
Department shall be deposited by the issuing
institution directly into the standby trust fund in accordance with
instructions from the
Department. This standby trust fund shall meet the
requirements of the trust fund specified in subsection (a) of this section,
except that:
(A) an originally signed
duplicate of the standby trust agreement shall be submitted to the Department
with the letter of credit; and
(B)
unless the standby trust fund is funded pursuant to the requirements of this
section, the following are not required by these regulations:
1. payments into the trust fund as specified
in subsection (a) of this section;
2. updating of Schedule A of the trust
agreement (see section
66264.151, subsection (a)) to show
current
closure cost estimates;
3.
annual valuations as required by the trust agreement; and
4. 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 Hazardous Waste Facility Identification Number, name and address of the
facility, and the amount of funds assured for closure of the facility by the
letter of credit.
(5) The letter of
credit shall be irrevocable and issued for a period of at least one (1) year.
The letter of credit shall provide that the expiration date will 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 Department by certified mail of a decision not to
extend the expiration date. Under the terms of the letter of credit, the 120
days shall begin on the date when both the owner or operator and the Department
have received the notice, as evidenced by the return receipts.
(6) The letter of credit shall be issued in
an amount at least equal to the current closure cost estimate, except as
provided in subsection (f) of this section.
(7) Whenever the current closure cost
estimate increases to an amount greater than the amount of the letter of
credit, the owner or operator, within 60 days after the increase, shall either
cause the amount of the letter of credit to be increased so that it at least
equals the current closure cost estimate and submit evidence of such increase
to the Department, or obtain other financial assurance as specified in this
section to cover the increase. Whenever the current closure cost estimate
decreases, the amount of the letter of credit may be reduced to the amount of
the current closure cost estimate following written approval by the
Department.
(8) Following a
determination by the Department that the owner or operator has failed to
perform final closure in accordance with the approved closure plan when
required to do so, the Department may draw on the letter of credit. For
facilities that require a RCRA permit, that determination shall be made
pursuant to Section
25187
of the Health and Safety Code.
(9)
If the owner or operator does not establish alternate financial assurance as
specified in this section and obtain written approval of such alternate
assurance from the Department within 90 days after receipt by both the owner or
operator and the Department of a notice from the issuing institution that it
has decided not to extend the letter of credit beyond the current expiration
date, the Department shall draw on the letter of credit. The Department shall
delay drawing on the letter of credit in accordance with the provisions of this
paragraph if the issuing institution grants an extension of the term of the
credit. During the last 30 days of any such extension the Department shall draw
on the letter of credit if the owner or operator has failed to provide
alternate financial assurance as specified in this section and obtain written
approval of such assurance from the Department.
(10) The
Department shall return the letter
of credit to the issuing institution for termination when:
(A) an owner or operator substitutes
alternate financial assurance as specified in this section; or
(B) the Department releases the owner or
operator from the requirements in accordance with subsection (i) of this
section.
(d)
Closure insurance.
(1) An
owner or operator
may satisfy the requirements of this section by obtaining
closure insurance
that conforms to the requirements of this section and submitting a certificate
of such insurance to the
Department. The
owner or operator shall submit to the
Department a letter from an insurer stating that the insurer is considering
issuance of
closure insurance conforming to the requirements of this subsection
to the
owner or operator. The
owner or operator shall submit the certificate of
insurance to the
Department or establish other financial assurance as specified
in this section. At a minimum, the insurer shall be:
(A) an admitted carrier, licensed to transact
the business of insurance in California; or
(B) a nonadmitted carrier eligible to provide
insurance as an excess or surplus lines insurer in California. Any excess or
surplus insurance relied upon by the owner or operator to meet the requirements
of this subsection shall be underwritten by a surplus lines insurer that is on
the California Department of Insurance's List of Approved Surplus Line Insurers
as being eligible to cover risks in California, or the Quarterly Listing of
Alien Insurers maintained by the International Insurers Department of the
National Association of Insurance Commissioners and is licensed as an insurer
in its domiciliary jurisdiction.
(2) The wording of the certificate of
insurance shall be identical to the wording specified in section
66264.151, subsection (e). The
certificate of insurance shall contain original signatures.
(3) The closure insurance policy shall be
issued for a face amount at least equal to the current closure cost estimate,
except as provided in subsection (f) of this section. The term "face amount"
means the total amount the insurer is obligated to pay under the policy. Actual
payments by the insurer shall not change the face amount, although the
insurer's future liability shall be lowered by the amount of the
payments.
(4) The closure insurance
policy shall guarantee that funds shall be available to close the facility
whenever final closure occurs. The policy shall also guarantee that once final
closure begins, the insurer shall be responsible for paying out funds, up to an
amount equal to the face amount of the policy, upon direction from the
Department, to such party or parties as the Department specifies.
(5) After beginning partial or final closure,
an owner or operator or any other person authorized to conduct closure may
request reimbursements for closure expenditures by submitting itemized bills to
the Department. The owner or operator may request reimbursements for partial
closure 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 Department shall
instruct the insurer to make reimbursements in such amounts as the Department
specifies in writing if the Department determines that the partial or final
closure expenditures are in accordance with the approved closure plan or
otherwise justified. If the Department has reason to believe that the maximum
cost of closure over the remaining life of the facility will be significantly
greater than the face amount of the policy, a reimbursement of such amounts may
be withheld as deemed prudent until a determination, in accordance with
subsection (i) of this section, that the owner or operator is no longer
required to maintain financial assurance for final closure of the particular
facility is made. If the Department does not instruct the insurer to make such
reimbursements, the owner or operator shall be provided a detailed written
statement of reasons.
(6) The owner
or operator shall maintain the policy in full force and effect until the
Department consents to termination of the policy by the owner or operator as
specified in subsection (d)(10) of this section. Failure to pay the premium,
without substitution of alternate financial assurance as specified in this
section, shall constitute a significant violation of these regulations,
warranting such remedy as the Department deems necessary. Such violation will
be deemed to begin upon receipt by the Department 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
Department. Cancellation, termination or
failure to renew shall not occur, however, during the 120
days beginning with
the date of receipt of the notice by both the
Department and the
owner or
operator, as evidenced by the return receipts. Cancellation, termination or
failure to renew shall not occur and the policy shall remain in full force and
effect in the event that on or before the date of expiration:
(A) the Department deems the facility
abandoned; or
(B) interim status is
terminated or revoked; or
(C)
closure is ordered by the Department or any other State or Federal agency or a
U.S. district court or other court of competent jurisdiction; or
(D) the owner or operator is named as debtor
in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S.
Code; or
(E) the premium due is
paid.
(9) Whenever the
current closure 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 closure cost estimate and submit evidence of such increase to
the Department, or obtain other financial assurance as specified in this
section to cover 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 Department.
(10) The
Department shall give written
consent to the
owner or operator that the insurance policy may be terminated
when:
(A) an owner or operator substitutes
alternate financial assurance as specified in this section; or
(B) the Department releases the owner or
operator from the requirements in accordance with subsection (i) of this
section.
(e)
Financial test and guarantee for
closure.
(1)
An
owner or operator may satisfy the requirements of this section by
demonstrating that the
owner or operator passes the financial test specified in
this subsection. To pass this test the
owner or operator shall meet the
criteria of either subsection (e)(1)(A) or (B) of this section:
(A) the
owner or operator shall have all of
the following:
1. 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;
2. a
current corporate credit rating of AAA, AA, A, or BBB as issued by Standard and
Poor's or Aaa, Aa, A, or Baa as issued by Moody's;
3. net working capital and tangible net worth
each at least six times the sum of the current closure and postclosure cost
estimates and the current plugging and abandonment cost estimates;
4. tangible net worth of at least $20
million; and
5. 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 closure and post-closure cost estimates for
all of the owner's or operator's hazardous waste facilities regulated by the
Department and the current plugging and abandonment cost estimates.
(B) The
owner or operator shall
have all of the following:
1. a current rating
for his or her 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;
2. tangible net worth at least six times the
sum of the current closure and post-closure cost estimates and the current
plugging and abandonment cost estimates;
3. tangible net worth of at least $20
million; and
4. 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 closure and post-closure cost estimates for
all of the owner's or operator's hazardous waste facilities regulated by the
Department and the current plugging and abandonment cost estimates.
(2) The phrase "current
closure and post-
closure cost estimates" as used in subsection (e)(1) of this
section refers to the cost estimates required to be shown in paragraphs 1
through 6 of the letter from
the owner's or
operator's chief financial
officer
as specified in section
66264.151, subsection (f). The
phrase "current plugging and abandonment cost estimates" as used in subsection
(e)(1) of this section refers to the cost estimates required to be shown in
paragraphs 1 through 6 of the letter from
the owner's or
operator's chief
financial
officer.
(3) To
demonstrate that this test has been met, the
owner or operator shall submit all
of the following items to the
Department:
(A)
a letter signed by
the owner's or
operator's chief financial
officer. The
letter shall be on
the owner's or
operator's official letterhead stationery,
shall contain an original signature and shall be worded as specified in section
66264.151, subsection
(f);
(B) a copy of the owner's or
operator's financial statements and 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
(C) a special report from
the owner's or
operator's independent certified public accountant to the
owner or operator
that includes the following:
1. a statement
that 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 latest
fiscal year with the amounts in such financial statements; and
2. identification and description of the
specific accounting standards and guidance relied upon to prepare the
report.
(4)
After the initial submission of items specified in subsection (e)(3) of this
section, the owner or operator shall send updated information to the Department
within 90 days after the close of each succeeding fiscal year. This information
shall consist of all items specified in subsection (e)(3) of this
section.
(5) If the owner or
operator no longer meets the requirements of subsection (e)(1) of this section,
the owner or operator shall send notice to the Department of intent to
establish alternate financial assurance as specified in this section. The
notice shall be sent by certified mail within 90 days after any occurrence that
prevents the owner or operator from meeting the requirements. The owner or
operator shall provide the alternate financial assurance within 120 days after
such occurrence.
(6) The Department
may, based on a reasonable belief that the owner or operator may no longer meet
the requirements of subsection (e)(1) of this section, require reports of
financial condition at any time from the owner or operator in addition to those
specified in subsection (e)(3) of this section. If the Department finds, on the
basis of such reports or other information, that the owner or operator no
longer meets the requirements of subsection (e)(1) of this section, the owner
or operator shall provide alternate financial assurance as specified in this
section within 30 days after notification of such a finding.
(7) The Department may disallow use of this
test on the basis of qualifications in the opinion expressed by the independent
certified public accountant in his or her report on examination of the owner's
or operator's financial statements (see subsection (e)(3)(B) of this section).
An adverse opinion or a disclaimer of opinion shall be cause for disallowance.
The Department shall evaluate other qualifications on an individual basis. The
owner or operator shall provide alternate financial assurance as specified in
this section within 30 days after notification of the disallowance.
(8) The
owner or operator is no longer
required to submit the items specified in subsection (e)(3) of this section
when:
(A) an owner or operator substitutes
alternate financial assurance as specified in this section; or
(B) the Department releases the owner or
operator from the requirements of this section in accordance with subsection
(i) of this section.
(9)
An
owner or operator may meet the requirements of this section by obtaining a
written guarantee. The guarantor shall be the direct or higher-tier
parent
corporation of the
owner or operator as defined in section
66260.10, 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 and comply with the requirements for owners or operators
in subsections (e)(1) through (e)(8) of this section and shall comply with the
terms of the guarantee. The wording of the guarantee shall be identical to the
wording specified in section
66264.151, subsection (h). The
guarantee shall be on the official letterhead stationery of the
parent
corporation, shall contain an original signature and the signature shall be
formally witnessed or notarized. A certified copy of the guarantee shall
accompany the items sent to the
Department as specified in subsection (e)(3) of
this section. One of these items must 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 must 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
must describe this "
substantial business relationship" and the value received
in consideration of the guarantee. The terms of the guarantee shall provide
that:
(A) if the owner or operator fails to
perform final closure of a facility covered by the guarantee in accordance with
the closure plan and other interim status requirements whenever required to do
so, the guarantor shall do so or shall establish a trust fund as specified in
subsection (a) of this section in the name of the owner or operator;
(B) the guarantee shall remain in force
unless the guarantor sends notice of cancellation by certified mail to the
owner or operator and to the Department. Cancellation shall not occur, however,
during the 120 days beginning on the date of receipt of the notice of
cancellation by both the owner or operator and the Department, as evidenced by
the return receipts;
(C) if the
owner or operator fails to provide alternate financial assurance as specified
in this section and obtain the written approval of such alternate assurance
from the Department within 90 days after receipt by both the owner or operator
and the Department of a notice of cancellation of the guarantee from the
guarantor, the guarantor shall provide such alternate financial assurance in
the name of the owner or operator.
(10) An owner or operator may not rely on any
assets to meet the requirements of this section if those same assets serve as
the basis of satisfying any financial assurance or financial guarantee
requirement imposed by any other "governmental agency," as defined in
California Civil Code of section 1633.2, subdivision (i).
(f) Use of multiple financial mechanisms. An
owner or operator may satisfy the requirements of this section by establishing
more than one financial mechanism per facility. The mechanisms shall be as
specified in subsections (a) through (d) and (h) of this section, 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
closure cost estimate. If an owner or operator uses a trust fund in combination
with a surety bond or a letter of credit, the trust fund may be used as the
standby trust fund for the other mechanisms. A single standby trust fund may be
established for two or more mechanisms. If the owner or operator demonstrates
the required coverage through the use of a combination of financial assurances
under this subsection, the owner or operator shall specify at least one such
assurance as "primary" coverage and shall specify the other as "excess"
coverage. The Department may use any or all of the mechanisms to provide for
closure of the facility.
(g) Use of
a financial mechanism for multiple facilities. An
owner or operator may use one
or more of the financial assurance mechanisms specified in section
66265.143, subsections (a) through
(e) and (h) to meet the requirements of section
66265.143 for more than one
facility. Evidence of financial assurance submitted to the
Department shall
include a list showing, for each facility, the
Hazardous Waste Facility
Identification Number, name, address and the amount of funds for
closure
assured by the mechanism. The amount of funds available through the mechanism
shall be no less than the sum of funds that would be available if a separate
mechanism had been established and maintained for each facility. In directing
funds available through the mechanism for
closure of any of the facilities
covered by the mechanism, the
Department 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) Alternative Financial Mechanism for
Closure Costs.
(1) An
owner or operator of a
facility or facilities where solely
non-RCRA hazardous waste is managed may
establish financial assurance for
closure by means of a financial mechanism
other than those specified in subsections (a) through (e) of this section,
provided that, prior to its use, the mechanism has been submitted to and
approved by the
Department. The mechanism shall be at least equivalent to the
financial mechanisms specified in subsections (a) through (e) of this section.
The
Department shall evaluate the equivalency of a mechanism principally in
terms of:
(A) Certainty of the availability of
funds for the required closure activities; and
(B) The amount of funds that will be made
available.
The Department shall also consider other factors deemed to
be appropriate, and shall require the owner or operator to submit additional
information as is deemed necessary to make the determination.
(2) The
owner or operator shall
submit to the
Department the proposed mechanism together with a letter
requesting that the proposed mechanism be considered acceptable for meeting the
requirements of section
66265.143. The submission shall
include the following information:
(A) Name,
address and telephone number of issuing institution; and
(B) Hazardous waste facility identification
number, name, address and closure cost estimate for each facility intended to
be covered by the proposed mechanism; and
(C) The amount of funds for closure to be
assured for each facility by the proposed mechanism; and
(D) The terms of the proposed mechanism
(period covered, renewal/extension, cancellation).
(3) The Department shall notify the owner or
operator in writing of the determination made regarding the proposed
mechanism's acceptability in lieu of the financial mechanisms specified in
subsections (a) through (e) of this section.
(4) If a proposed mechanism is found
acceptable, the owner or operator shall submit a fully executed document to the
Department. The document shall contain original signatures and shall be
accompanied by a formal certification of acknowledgment.
(5) If a proposed mechanism is found
acceptable except for the amount of funds, the owner or operator shall either
increase the amount of the mechanism or obtain other financial assurance as
specified in subsections (a) through (e) of this section. The amount of funds
available through the combination of mechanisms shall at least equal the
current closure cost estimate.
(i) Release of the
owner or operator from the
requirements of this section.
(1) Within 60
days after receiving certifications from the owner or operator and an
independent professional engineer, registered in California that final closure
has been completed in accordance with the approved closure plan, the Department
shall notify the owner or operator in writing that he or she is no longer
required by this section to maintain financial assurance for final closure of
the facility, unless the Department has reason to believe that final closure
has not been in accordance with the approved closure plan. The Department shall
provide the owner or operator a detailed written statement of any such reason
to believe that closure has not been in accordance with the approved closure
plan.
(2) When transfer of
ownership or operational control of a facility occurs, and the new owner or
operator has demonstrated to the satisfaction of the Department that he or she
is complying with the financial requirements of this section, the Department
shall notify the previous owner or operator in writing that they are no longer
required to maintain financial assurance for closure of that particular
facility.