(A) Applicability.
(1) Financial assurance information shall be
submitted as part of a permit to install for a new sanitary landfill facility,
for a modification that increases the postclosure care 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
, 3745-29-11, or 3745-30-09 of the Administrative
Code, as applicable, the
owner or
operator shall submit to Ohio EPA a
post-closure care financial assurance instrument in accordance with this rule.
[Comment: The requirements of this rule do not apply to solid
waste incinerators subject to the requirements of rules
3745-27-50
to
3745-27-53
of the Administrative Code; solid waste transfer
facilities subject to the requirements of rules
3745-27-21
to
3745-27-24
of the Administrative Code; or scrap tire collection, storage,
recovery, mobile recovery facilities or scrap tire transporters subject to
rules
3745-27-54
to
3745-27-67
of the Administrative Code, because there are no post-closure care requirements
for these types of facilities or operations.]
(B) Implementation.
(1) The owner or operator of a sanitary
landfill facility shall execute and fund the post-closure care financial
assurance instrument submitted as a part of a permit to install prior to
receipt of solid waste at a new sanitary landfill facility, a modification that
increases post-closure care cost estimates of an existing sanitary landfill
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 sanitary landfill facilities subject to paragraph (A) of rule
3745-27-11
, 3745-29-11, or 3745-30-09 of the Administrative
Code, as applicable, shall
execute and fund the post-closure care financial
assurance instrument not later than sixty days after approval of the final
closure/post-closure care plan.
(C) Post-closure care financial assurance
instrument. The post-closure care financial assurance instrument shall contain
an itemized written estimate, in current dollars, of the cost of post-closure
care for the
sanitary landfill facility in accordance with rule
3745-27-14
, 3745-29-14, or 3745-30-10 of the Administrative
Code, as applicable, or for a
scrap tire monofill facility in accordance with
rule
3745-27-74
of the Administrative Code. The estimate shall be based on a third party
conducting the post-closure care activities. Ohio EPA may review, approve, or
require revisions to the post-closure care cost estimate or to the post-closure
care financial assurance instrument.
(D) Review of post-closure care financial
assurance instruments. The
owner or
operator of a sanitary landfill facility
shall submit
to the director, by certified mail or
any other form of mail accompanied by a receipt, the most recently
adjusted post-closure care cost estimate
prepared in
accordance with the following:
to the director
by certified mail or any other form of mail accompanied by a receipt. The owner
or operator shall do the following:
(1)
The owner or operator of a sanitary landfill
facility shall annually
Annually review
and analyze the post-closure care cost estimate and
shall make any appropriate revisions to
these
The
estimates and to the financial assurance instrument whenever a change in the
post-closure care activities increases the cost of post-closure care. Any
revised post-closure care cost estimate
must
shall be adjusted
for inflation as specified in paragraph (D)(2) of this rule.
(2)
The owner or
operator of a sanitary landfill facility shall annually
Annually adjust the post-closure care cost estimate
for inflation. The adjustment shall be made
as
specified in this paragraph, 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)
The
For the
first adjustment
,
is
made by multiplying the post-closure care cost estimate by the
inflation factor. The result is the adjusted post-closure care cost
estimate.
(b)
Subsequent
For
subsequent adjustments
,
are made by multiplying the most recently
adjusted post-closure care cost estimate by the most recent inflation
factor.
(E) The
owner or
operator of a sanitary landfill facility shall select a post-closure
care financial assurance mechanism from the list of mechanisms specified in
paragraph (F)
, (G), (H), (I), (J), (K),
or
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) Post-closure care trust fund.
(1) The
owner or
operator may satisfy the
requirements of this rule by establishing a post-closure care trust fund
which
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
which
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
the trust agreement shall 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 post-closure care cost estimate provided for in the
agreement.
(3) A post-closure care
trust fund shall be established to secure an amount at least equal to the
current post-closure care cost estimate, except as provided in paragraph (M) of
this rule.
Payments
Except for payments made in accordance with paragraph (F)(4)
of this rule, payments to the trust fund shall be made annually
, except as permitted by paragraph (F)(4) of this
rule, by the
owner or
operator over the
term of the applicable authorizing document, including permit to install, or
plan approval, and
during the pay-in period.
The pay-in period shall be
based
on
the anticipated life of the facility as
calculated using the
authorized maximum daily waste receipt and the
approved volume of the sanitary landfill facility
;
this period is hereafter referred to as the pay-in period
as shown in the authorizing document.
The
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 post-closure care 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
paragraph (B) of this rule. Subsequent
payments to the post-closure care trust fund shall be made as follows:
(a)
A receipt from
the trustee for each payment shall be submitted by the owner or operator to the
director. The first payment shall be at least equal to the current post-closure
care cost estimate divided by the number of years in the pay-in period, except
as provided in paragraph (M) of this rule. Subsequent payments shall be made
not
No 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 post-closure care 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 post-closure care cost
estimate made during the pay-in period, the amount of the
current post-closure
care 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 post-closure care 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
required under paragraph (F)(3)(a) or (F)(3)(b) of this
rule
of the pay-in period by providing
alternate
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
under
by this
paragraph
(F)(3)(a) or (F)(3)(b) of this
rule or select an
alternate
alternative financial assurance
mechanism.
(4) The
owner
or
operator may accelerate payments into the trust fund or
the owner or operator may deposit the full
amount of the
current post-closure care cost estimate at the time the fund is
established.
However, the
The owner or
operator shall maintain the value of the
fund at no less than the value
of the fund
would have if annual payments were made as
specified in paragraph (F)(3) of this rule.
(5) If the owner or operator establishes a
post-closure care trust fund after having begun funding post-closure care under
any mechanisms specified in this rule, the post-closure care 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 post-closure care 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
its
The value after payment at least equals the amount of
the
current post-closure care cost estimate, or obtain
alternate
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 for a
release of funds:
(a)
The owner or operator may submit a written request
to the director for the release
Release
of the amount in excess of the
current post-closure care cost estimate, if the
value of the trust fund is greater than the total amount of the
current
post-closure care cost estimate.
(b)
The owner or operator may submit a written request
to the director for release
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
alternate
alternative financial assurance mechanisms specified
in this rule for all or part of the trust fund.
(8) Reimbursement for post-closure care at
sanitary landfill facilities.
After
After beginning
post-closure care, the owner or operator, or any other person authorized by the
owner, operator, or director to perform post-closure care, may request
reimbursement for post-closure care expenditures by submitting itemized bills
to the director. After receiving itemized bills for post-closure care
activities, the director shall determine whether the post-closure care
expenditures are in accordance with the final closure/post-closure care plan,
permit requirements, and applicable rules, or are otherwise justified, and if
so, will instruct the trustee to make reimbursement in such amounts as the
director specifies in writing. If the director determines that the cost of
postclosure care will be greater than the value of the trust fund, the director
may withhold reimbursement of such amounts as he
the director
deems
prudent until he
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
post-closure care of the facility.
(9) The
director will
may agree to
termination of a trust when one of the following occurs:
(a) The
owner or
operator substitutes
alternate
alternative financial assurance for post-closure care
as specified in
paragraph (F)(6) of 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 post-closure care of the facility.
(G) Surety bond guaranteeing payment into a
post-closure care trust fund.
(1) The
owner or
operator may satisfy the requirements of this rule by obtaining a surety bond
which conforms to 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
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
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 most recent listing of approved sureties as published
by the U.S. department of treasury.
(2) The wording of the surety bond shall be
identical to 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 the
requirements 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 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 post-closure
care 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
shall 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 final closure of the facility.
(b) Funds the standby trust fund in an amount
equal to the penal sum of the bond not later than fifteen days after a
mandatory final closure requirement in accordance with the final
closure/post-closure care plan, permit requirements, and applicable
rules.
(c)
Provides alternate
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 obtain the
director's written approval of the
alternate
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) 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 postclosure care cost
estimate except as provided in paragraph (M) of this rule.
(7) Whenever the
current post-closure care
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 post-closure care 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
alternate
alternative
financial assurance, as specified in this rule, to compensate for the increase.
Whenever the
current post-closure care cost estimate decreases, the penal sum
may be reduced to the amount of the
current post-closure care 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 will
shall provide such written consent to the surety bond
company when one of the following occurs:
(a)
The owner or operator substitutes alternate financial assurance for postclosure
care 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 post-closure care of the
facility.
(H)
Surety bond guaranteeing performance of post-closure care.
(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
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 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
that
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 post-closure
care 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
shall become liable on the bond obligation unless the
owner or
operator does
one of the following, as applicable:
(a)
Performs post-closure care in accordance with the final closure/post-closure
plan, and applicable rules, and other requirements of the permit
or registration.
(b) Provides
alternate
alternative
financial assurance as specified in this rule, and obtains the
director's
written approval of the
alternate
alternative financial assurance provided, not later
than ninety days after both the
owner or
operator and the
director receives
notice of cancellation of the bond from the surety.
(5) 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
post-closure care activities in accordance with the final closure/post-closure
plan, applicable rules, and permit requirements, the surety shall perform
post-closure care in accordance with the final closure/post-plan and permit
requirements, or applicable rules, 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
postclosure care cost estimate.
(7)
Whenever the
current post-closure care 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
post-closure care 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
alternate
alternative
financial assurance, as specified in this rule, to compensate for the increase.
Whenever the
current post-closure care cost estimate decreases, the penal sum
may be reduced to the amount of the
current post-closure care 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
will
shall
provide such written consent to the surety bond company when one of the
following occurs:
(a) The
owner or
operator
substitutes
alternate
alternative financial assurance for post-closure care
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 post-closure care of the
facility.
(10) The surety
shall not be liable for deficiencies in the completion of post-closure care
activities 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 post-closure
care of the facility.
(I)
Post-closure care 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 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
of the letter
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 postclosure
care 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 post-closure care 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
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 postclosure care
cost estimate, except as provided in paragraph (M) of this rule.
(7) Whenever the
current post-closure care
cost estimate increases to an amount greater than the amount of the credit, the
owner or operator shall, not later than sixty days after this increase, either
cause the amount of the credit to be increased to an amount at least equal to
the
current post-closure care 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
alternate
alternative
financial assurance, as specified in this rule, to compensate for the increase.
Whenever the
current post-closure care cost estimate decreases, the letter of
credit may be reduced to the amount of the
current post-closure care 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 either of the following:
(a) Perform post-closure care activities in
accordance with the final closure/ post-closure care plan, permit requirements,
and applicable rules.
(b) Provide
alternate
alternative financial assurance as specified in this
rule and obtain written approval of such
alternate
alternative
financial assurance from the
director not later than ninety days after the
owner or 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. 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 final thirty days of
any such extension the
director shall draw on the letter of credit if the owner
or operator has failed to provide
alternate
alternative
financial assurance as specified in this rule and has failed to obtain written
approval of such
alternate
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
alternate
alternative financial assurance for post-closure care
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 post-closure care of the
facility.
(J)
Post-closure care insurance.
(1) The
owner or
operator may satisfy this rule by obtaining post-closure care insurance
which
that
conforms to the requirements of this paragraph and by submitting a originally
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 by submitting a copy of the
certificate of insurance into the operating record
of the facility in accordance with rule
3745-27-09
of the Administrative Code, if applicable. 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 post-closure care insurance policy
shall be issued for a face amount at least equal to the current post-closure
care 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 post-closure care
insurance policy shall guarantee that funds will be available to perform
post-closure care whenever mandated. The policy shall also guarantee that once
post-closure care 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) Reimbursement for post-closure care.
After
After beginning
post-closure care, the owner or operator, or any other person authorized by the
owner, operator, or director to perform postclosure care, may request
reimbursement for post-closure care expenditures by submitting itemized bills
to the director. After receiving itemized bills for postclosure care
activities, the director shall determine whether the post-closure care
expenditures are in accordance with rule
3745-27-14
, 3745-29-14, or 3745-30-10 of the Administrative
Code, as applicable, and the final closure/ post-closure plan, applicable
rules, the permit, 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 post-closure
care will be greater than the face amount of the policy, the director may
withhold reimbursement of such amounts as he
the director
deems
prudent until he determines, in accordance with paragraph (O) of this rule,
that the owner or operator is no longer required to maintain financial
assurance for post-closure care of the facility.
(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 paragraph
(J)(8)
(J)(10)
of this rule. Failure to pay the premium, without substitution of
alternate
alternative financial assurance as specified in this
rule,
will
shall constitute 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.
(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
At a minimum, 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 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
,
unless
if the following occurs on or before the date of
expiration:
(a) Post-closure care activities
required in the final closure/post-closure care plan, permit requirements, and
applicable rules have
occurred
not been completed.
(b) Post-closure care of the facility is
ordered by the director or a court of competent jurisdiction.
(c) The owner or operator is named as debtor
in a voluntary or involuntary proceeding under title 11 (bankruptcy), U.S.
Code.
(d) The premium due is
paid.
(9) Whenever the
current post-closure care 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 post-closure care 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
alternate
alternative
financial assurance as specified in this rule to compensate for the increase.
Whenever the
current post-closure care cost estimate decreases, the face amount
may be reduced to the amount of the
current post-closure care cost estimate
following written approval by the director.
(10) The
director will
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
alternate
alternative financial assurance for post-closure care
as specified in this rule.
(b) The
director notifies the owner or operator, in accordance with paragraph (O) of
this rule that owner or operator is no longer required to maintain financial
assurance for post-closure care of the facility.
(K) Financial test and corporate guarantee
for post-closure care.
(1) The
owner or
operator may satisfy
the requirements of 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 operations, 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
$10
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 final closure and current post-closure cost estimates, scrap tire
transporter final 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 final closure and current post-closure care
cost estimates, scrap tire transporter final closure cost estimates, any
current corrective measures cost estimates, and any other obligations assured
by a financial test.
(b)
The
owner or
operator shall have one of 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
must
shall
meet the minimum rating without that security.
(ii) Tangible net worth at least six times
the sum of the current final closure and current post-closure care cost
estimates, scrap tire transporter final 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 final closure and current
post-closure care cost estimates, scrap tire transporter final closure cost
estimates, any current corrective measures cost estimates, and any other
obligations assured by a financial test.
(2) Current final closure and current
post-closure care cost estimates, scrap tire transporter final closure cost
estimates, 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,
the owner or operator
shall send notice
shall be sent to
the
director of the intent to establish
alternate
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
alternate
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 paragraph (K)(1) of this rule, the owner or
operator shall provide alternate 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
alternate 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
alternate
alternative financial assurance for post-closure care
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 post-closure care of the facility.
(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 post-closure care of a facility provided for by the
corporate guarantee in accordance with the final closure/post-closure care
plan, permit 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
shall 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
alternate
alternative financial assurance as specified in this
rule, and fails to obtain the written approval of such
alternate
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
alternate
alternative
financial assurance in the name of the
owner or
operator.
(L)
Local government financial test for post-closure care.
(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"
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 must meet the minimum
rating without that security.
(3)
In addition,
to satisfy the financial component of the test, a
A local government shall
meet
satisfy either of
the following
criteria:
(a) The local government shall
have
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 final closure, post-closure care, corrective measures, scrap tire
transporter final 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
have
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 must meet the minimum rating without that security.
(ii) A ratio of the current cost estimates
for final closure, post-closure care, corrective measures, scrap tire
transporter final 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 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 final closure, post-closure
care, corrective measures,
scrap tire transporter final closure, the
corresponding cost estimate for each expenditure, and the anticipated year of
the required activity
must
shall be recorded. If the financial assurance
obligation is to be included in the budget, it
should
shall 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
a local government meets the requirements of this test, the following
three items must 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 that does the
following:
(i) Lists all the current cost
estimates covered by a financial test.
(ii) Certifies that the local government
meets the conditions of paragraph (L)(1) of this rule.
(iii) Provides evidence and certifies that
the local government meets the conditions of either paragraph (L)(2)(a) or
(L)(2)(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, the independent certified public
accountant states 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
this rule,
the owner or operator shall send
notice
shall be sent to the
director
of the intent to establish
alternate
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
alternate
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
alternate
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
alternate
alternative financial assurance as specified in this
rule not later than thirty days after notification of the
disallowance.
(10) The 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
alternate
alternative financial assurance for post-closure care
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 post-closure care of the
facility.
(M)
Use of multiple financial assurance mechanisms.
The
The owner or operator may
satisfy this rule by establishing more than one financial assurance mechanism
for each facility. These mechanisms are limited to a trust fund, surety bond
guaranteeing payment into a post-closure care 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 postclosure care 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 post-closure care of the facility.
(N) Use of a financial assurance mechanism
for multiple facilities.
The
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 post-closure care 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 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 post-closure care of a particular facility, unless the
director has reason to believe that post-closure care has not been completed in
accordance with rule
3745-27-14
, 3745-29-14, or 3745-30-10 of the Administrative
Code or the final closure/post-closure plan after receiving certifications from
the owner or operator and an independent professionals skilled in the
appropriate disciplines that post-closure care has been completed in accordance
with the final closure/post-closure care plan, permit requirements, and
applicable rules.
[Comment: The notice releases the owner or operator only from
the requirements for financial assurance for post-closure care of the facility;
it does not release the owner or operator from legal responsibility for meeting
the final closure standards or corrective measures, if applicable.]
[Comment: "Circular 570" is
published in the "Federal Register" annually on the first day of July; interim
changes in the circular are also published in the "Federal Register." A copy of
"Circular 570" is available at http://www.gpo.gov/fdsys/.]