Kan. Admin. Regs. § 28-29-2105 - Financial assurance provided by a surety bond guaranteeing performance
(a) Performance
guarantee bond. Any owner or operator of a permitted solid waste disposal area
or processing facility may satisfy the requirements of K.A.R. 28-29-2101 or
K.A.R. 28-29-2102, or both, by obtaining a performance guarantee bond that
conforms to the requirements of this regulation and by submitting the original
bond to the department.
(1) Each owner or
operator of a new facility shall submit to the department the bond for closure
or postclosure, or both, before the permit is issued by the department.
(2) Each owner or operator
required to provide financial assurance for a corrective action plan shall
submit the bond to the department within the times specified in K.A.R.
28-29-2102(d).
(3) The surety
institution shall meet the following criteria:
(A) Be unrelated to the owner or operator;
(B) have the authority to issue
surety bonds in Kansas; and
(C) be
listed as an acceptable surety institution on federal bonds.
(b) Form of the
performance guarantee bond. The wording of the performance guarantee bond shall
be identical to the wording in the document provided by the department. If the
penal sum of the bond is increased during the life of the bond, the owner or
operator shall provide written acceptance of the new amount, indicated by a
signed acceptance placed on the certificate of increase issued by the surety
institution. The original signed and accepted certificate of increase shall be
filed with the department.
(c)
Standby trust fund. Any owner or operator who uses a performance guarantee bond
to satisfy the requirements of K.A.R. 28-29-2101 or K.A.R. 28-29-2102, or both,
shall also establish a standby trust fund. A copy of the standby trust
agreement with an original signature shall be submitted to the department along
with the original performance guarantee bond. Under the terms of the bond, all
payments from the penal sum shall be deposited by the surety institution
directly into the standby trust fund, in accordance with instructions from the
department. The standby trust fund shall conform to the requirements specified
in K.A.R. 28-29-2103, except that, until the trust account is funded pursuant
to the requirement of this regulation, the following shall not be required:
(1) Payments into the fund as specified in
K.A.R. 28-29-2103(c) or (e) ;
(2)
updates to schedule A of the trust agreement as specified in K.A.R. 28-29-2103(b)(3) ;
(3) annual valuations as
required by the trust agreement; and
(4) notices of nonpayment as required by the
trust agreement.
(d)
Provisions of the performance guarantee bond for closure and postclosure. The
performance guarantee bond for closure or postclosure, or both, shall require
that the owner or operator perform either of the following:
(1) Perform final closure or postclosure, or
both, in accordance with the closure or postclosure plan, or both, and any
other requirements of the permit and the department or a court of competent
jurisdiction whenever required to do so; or
(2) provide alternate financial assurance as
specified in these financial assurance regulations 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 have received a notice of
cancellation from the surety institution.
(e) Provisions of the performance guarantee
bond for corrective action. A performance guarantee bond for corrective action
shall require that the owner or operator perform either of the following:
(1) Perform corrective action according to
the corrective action plan or according to an order from the department or any
court of competent jurisdiction whenever required to do so; or
(2) provide alternate financial assurance as
specified in these financial assurance regulations and obtain the department's
written approval for the assurance provided, within 90 days after the date by
which both the owner or operator and the department have received a notice of
cancellation from the surety institution.
(f) Liability of the surety institution.
Under terms of the bond, the surety institution shall become liable on the bond
obligation when the owner or operator fails to perform as guaranteed by the
bond.
(g) Penal sum of the bond.
The penal sum of the bond for closure, postclosure, or both, shall be at least
the amount of the current cost estimate for closure or postclosure, or both.
The penal sum of the bond for corrective action shall be at least the amount of
the current cost estimate for corrective action for the entire corrective
period.
(h) Increase in the penal
sum of the bond. Whenever the current cost of closure, postclosure, corrective
action, or any combination of these, 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 the new amount and submit
evidence of the increase to the department, or obtain other financial assurance
as specified in K.A.R. 28-29-2101(b) to cover the increase. Whenever the
current cost of closure, postclosure, corrective action, or any combination of
these, decreases, the owner or operator may request approval from the
department to decrease the penal sum of the bond. The request shall be
evaluated by the department, and the amount shall be decreased consistent with
the department's evaluation.
(i)
Cancellation of the bond by the surety institution. Under terms of the bond,
the surety institution may cancel the bond by sending notice of cancellation by
certified mail to both the owner or operator and the department. Cancellation
shall not occur, however, during the 120 days following the date by which the
notice of cancellation has been received by both the owner or operator and the
department, as evidenced by the return receipts.
(j) Cancellation of the bond by the owner or
operator. The owner or operator may request cancellation of the bond from the
department if any of the following occurs:
(1) The owner or operator substitutes an
alternative method of financial assurance as specified in K.A.R. 28-29-2101(b)
and obtains written approval for its use from the department.
(2) The owner or operator is released by the
department from further obligation for closure or postclosure, or both, at the
facility.
(3) The owner or
operator completes required corrective action and is released from further
obligation by the department or any court of competent jurisdiction.
(k) The provisions of this
regulation shall apply on and after February 24, 2000.
Notes
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