Ohio Admin. Code 3745-27-18 - Corrective measures financial assurance for a solid waste landfill
For the purposes of this rule, "
(A) Applicability.
Except as provided in paragraph (C) of this rule,
this rule is applicable to an of a
subject to corrective
measures" pursuant to rule
3745-27-10 of the Administrative
Code shall comply with this rule. For the purposes
of this rule, "required to undertake corrective measures" means one
through the occurrence of any of the
following:
(1) The director selects a
corrective measure in accordance with paragraph (F)(10) of rule
3745-27-10 of the Administrative
Code.
(2) The director
requires the owner or operator to undertake
designates interim corrective measures to protect human health or the
environment in accordance with paragraph (F)(6) of rule
3745-27-10 of the Administrative
Code.
(3) The director
requires
obligates
the owner or operator to conduct corrective measures as a condition of a
permit.
(B)
Implementation.
(1) If the
sanitary landfill facility
owner or operator
is "required
subject to
undertake corrective measures" pursuant to a selection or designation of a plan
in accordance with paragraph (A)(1) or (A)(2) of this rule, the owner or
operator shall do the following:
(a) Not later
than ninety days after being required to
undertake
selection or designation of
corrective actions
measures in accordance with paragraph
(A)
(A)(1) or
(A)(2) of this rule, execute a corrective measures financial assurance
instrument, deliver the originally signed corrective measures financial
assurance instrument to the director by certified mail or any other form of
mail accompanied by a receipt, and place a copy of the corrective measures
financial assurance instrument into the operating record in accordance with
rule 3745-27-09 of the Administrative
Code.
(b) Not later than one
hundred twenty days after being required to
undertake
selection or designation of
corrective actions
measures in accordance with paragraph
(A)
(A)(1) or
(A)(2) of this rule, fund the corrective measures financial assurance
instrument.
(2) If the
owner or operator of a sanitary landfill facility is
"required to undertake
is subject to
corrective measures" pursuant to rule
3745-27-10 of the Administrative
Code as a condition of permit issuance, the owner or operator shall do the
following:
(a) Upon permit issuance, comply
with this rule.
(b) Not later than
the date of permit issuance, execute the corrective measures financial
assurance instrument, and prior to receipt of solid wastes in the units
authorized by the permit, fund the corrective measures financial assurance
instrument.
(C) This rule does not apply to the
following:(3)(2)
Sanitary
The owner
or operator of a solid waste
landfill facilities that ceased acceptance of solid waste
prior to June 1, 1994 as evidenced by the notification
required to be submitted
by
in accordance
with paragraph (E) of rule
3745-27-11 of the Administrative
Code.
(1)
Residual solid waste
The
owner or operator of an industrial landfill facility or residual landfill
facilities
facility subject to the requirements of Chapter
3745-30 of the Administrative Code.
(2)
(D) Corrective
measures financial assurance instrument.
The corrective measures financial assurance instrument shall
contain an itemized written estimate, in current dollars,
of
based on
the total cost of
for a third party to conduct the corrective measures
activities as described in the corrective measures plan for the entire
corrective measures period for all units of the sanitary
facility subject to the corrective
measures pursuant to rule
3745-27-10 of the Administrative
Code. The a sanitary
the facility undergoing corrective measures pursuant to
rule 3745-27-10 of the Administrative
Code. The estimate shall be based on a third party
conducting the corrective measures activities.
(E) Review of corrective measures financial
assurance instrument. The owner or operator of a
sanitary landfill facility shall review the
corrective measures cost estimate as follows and submit
the most recently adjusted corrective measures cost
estimate to the director by certified mail or any other form of mail
accompanied by a receipt, the most recently adjusted
corrective measures cost estimate prepared in accordance with this paragraph.
The owner or operator of a sanitary landfill facility shall do the
following:(2)(3) Annually adjust the
corrective measures 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.
and is calculated as
follows:
(1) Annually review and
analyze the corrective measures cost estimate and
shall make any appropriate revisions to these estimates and to the financial
assurance instrument whenever a change in the corrective measures activities
increases the cost of corrective measures. Any revised corrective measures cost
estimate must be adjusted for inflation as specified in paragraph (E)(2) of
this rule.
(2)
If a change in the corrective measures activities
increases the cost of corrective measures, revise the corrective measures cost
estimate to account for the increase.
(a) The first adjustment is
made by multiplying the corrective measures cost estimate by the inflation
factor. The result is the adjusted corrective measures cost estimate.
(b) Subsequent adjustments are made by
multiplying the most recently adjusted corrective measures cost estimate by the
most recent inflation factor.
(F) The owner or operator , who is required to undertake
subject to corrective measures
pursuant to paragraph (A)(1) or (A)(2) of this
rule shall select a corrective measures financial assurance mechanism
from the list of mechanisms specified in paragraphs (G) to (M) of this rule,
provided the owner or operator satisfies the criteria for use of that
mechanism.
(G) Corrective measures
trust fund.
(1) The owner or operator may
satisfy this rule by establishing a corrective measures trust fund
which
that
conforms to this paragraph, and by sending an originally signed duplicate of
the trust agreement to the director by certified mail or any other form of mail
accompanied by a receipt within the time period outlined in paragraph (B) of
this rule, and by submitting a copy of the trust agreement into the
operating record of the facility in accordance with rule
3745-27-09 of the Administrative
Code. 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 corrective measures
cost estimate provided for in the agreement.
(3) A corrective measures trust fund shall be
established to secure an amount at least equal to the current corrective
measures cost estimate , except as provided in paragraph (N) of this rule.
Payments to the trust fund shall be made quarterly, except as permitted by
paragraph (G)(4) of this rule, by the owner or operator over the term of the
projected corrective measures period as outlined in the applicable authorizing
document, including permit to install or plan approval, this period is
hereafter referred to as the pay-in period. The owner
or operator shall submit to the director a receipt from the trustee of each
payment into the trust fund. The first payment into the corrective
measures trust fund shall be made in accordance with paragraph (B) of this rule
and be at least equal to the current corrective
measures cost estimate divided by the number of quarters in the pay-in period,
except as provided in paragraph (N) of this rule. Subsequent payments to
the corrective measures 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 corrective
measures cost estimate divided by the number of quarters in the pay-in period,
except as provided in paragraph (N) of this rule. Subsequent payments shall be
made not
Not later than thirty days after
each quarter following the first payment. The amount of each subsequent payment
shall be determined by performing the following calculation:
Next payment = (CE - CV) / Q
Where CE is the
(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 corrective measures cost estimate made during the
pay-in period, the amount of the current corrective measures cost estimate
still to be paid into the trust fund shall be paid in by the owner or operator
over the pay-in period, as defined in paragraph (G)(3) of this rule.
Payments
The owner
or operator
shall continue to be
made
make payments not later than thirty
days after each quarter following the first payment pursuant to paragraph
(G)(3)(a) of this rule. The amount of each payment shall be determined by
performing the following calculation:
Next payment = (CE - CV) / Q
Where CE is the
(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 corrective measures 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 the fund would have if quarterly payments were
made as specified in paragraphs (G)(3) of this rule.
(5) If the owner or operator establishes a
corrective measures trust fund after having begun funding corrective measures
under any mechanisms specified in this rule, the corrective measures trust fund
shall be established by depositing the total value of all prior mechanisms into
the newly established trust fund. The subsequent quarterly payments shall be
made as specified in paragraph (G)(3) of this rule.
(6) After the pay-in period of a trust fund
has ended and the current corrective measures cost estimate changes, the owner
or operator shall compare the revised corrective
measures cost 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 corrective measures cost 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
value after payment at least equals the amount of the current corrective
measures 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)
A written
request to the director for the release
Release of the amount in excess of the current
corrective measures cost estimate , if the value of the trust fund is greater
than the total amount of the current corrective measures cost
estimate .
(b)
A written request to the director for
release
Release of the amount in the
trust fund that exceeds the amount required
necessary 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 corrective measures.
After beginning corrective measures, the care will be greater than the value of the
trust fund, the
(9) The director will agree to termination of
a trust when one of the following occurs:
(a)
The owner or operator substitutes alternate
alternative
financial assurance for corrective measures as specified in paragraph (G)(6) of
this rule.
(b) The director
notifies the owner or operator , in accordance with paragraph (P) of this rule,
that the owner or operator is no longer required by this rule to maintain
financial assurance for corrective measures.
(H) Surety bond guaranteeing payment into a
corrective measures trust fund.
(1) The owner
or operator may satisfy this rule by obtaining a surety bond that 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 paragraph (B) of this rule and by submitting a copy of the bond into the
operating record in accordance with rule
3745-27-09 of the Administrative
Code. The surety company issuing the bond shall at a minimum be among those
listed as acceptable sureties on federal bonds in "Circular 570"
the most
recent listing of approved sureties as published
by the U.S. department of the treasury.
(2) The wording of the surety bond shall be
identical to the wording specified in paragraph (B) of rule
3745-27-17 of the Administrative
Code on forms prescribed by the director .
(3) The owner or operator who uses a surety
bond to satisfy this rule shall also establish a standby trust fund not later
than when the bond is obtained. Under the terms of the surety bond, all
payments made thereunder will be deposited by the surety directly into the
standby trust fund in accordance with instructions from the director . This
standby trust fund shall meet paragraph (G) 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
placed in the operating record in accordance with rule
3745-27-09 of the Administrative
Code.
(b) Until 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 (G) of this rule.
(ii)
Revisions of " Schedule A" of the trust agreement to show
the current corrective measures cost
estimate .
(iii) Annual valuations
as required by
specified in the trust agreement;
.
(iv) Notices of nonpayment as required
by
specified
in the trust agreement.
(4) The bond shall guarantee that the surety
will become liable on the bond obligation unless the owner or operator does one
of the following, as applicable:
(a)
Fund
Funds the
standby trust fund in an amount equal to the penal sum of the bond before the
beginning of the corrective measures period.
(b)
Fund
Funds the standby
trust fund in an amount equal to the penal sum of the bond not later than
fifteen days after corrective measures are required
triggered
pursuant to rule
3745-27-10 of the Administrative
Code.
(c)
Provide alternate
Provides alternative financial assurance as specified
in this rule, and obtain the director 's written approval of the alternative
financial assurance provided, not later than ninety days after both the owner
or operator and the director receive notice of cancellation of the bond from
the surety.
(5) 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 corrective measures cost
estimate except as provided in paragraph (N) of this rule.
(7) Whenever the current corrective measures
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 corrective measures cost estimate, either
cause the penal sum of the bond to be increased to an amount at least equal to
the current corrective measures 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, or obtain alternate
alternative financial assurance as specified in this
rule to compensate for the increase. Whenever the current corrective measures
cost estimate decreases, the penal sum may be reduced to the amount of the
current corrective measures 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 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 corrective
measures as specified in this rule.
(b) The director notifies the owner or
operator in accordance with paragraph (P) of this rule that the owner or
operator is no longer required to maintain financial assurance for corrective
measures.
(I)
Surety bond guaranteeing performance of corrective measures.
(1) The owner or operator may satisfy this
rule by obtaining a surety bond which
that conforms to this paragraph and by delivering the
originally signed bond to the director within the time period outlined in
paragraph (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. The surety company issuing the bond shall at a minimum be among those
listed as acceptable sureties on federal bonds in "Circular 570"
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 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 the requirements
specified in paragraph (G) 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
placed in the operating record in accordance with rule
3745-27-09 of the Administrative
Code.
(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 (G) of this rule.
(ii)
Revisions of " Schedule A" of the trust agreement to show
the current corrective measures cost
estimate .
(iii) Annual valuations
as required by
specified in the trust agreement.
(iv) Notices of nonpayment as
required by
specified in the trust agreement.
(4) The bond shall guarantee that
the surety will become liable on the bond obligation unless the owner or
operator does one of the following, as applicable:
(a) Performs corrective measures in
accordance with the applicable authorizing document, including the permit to
install or plan approval.
(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 receive
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 sanitary landfill
facility has failed to perform corrective measures activities in
accordance with the applicable authorizing document, including the permit to
install or plan approval, the surety shall perform corrective measures in
accordance with the applicable authorizing document, including the permit to
install or plan approval, 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 corrective
measures cost estimate .
(7)
Whenever the current corrective measures 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
corrective measures 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, or obtain alternate
alternative financial assurance, as specified in this
rule, to compensate for the increase. Whenever the current corrective measures
cost estimate decreases, the penal sum may be reduced to the amount of the
current corrective measures 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 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 corrective
measures as specified in this rule.
(b) The director notifies the owner or
operator , in accordance with paragraph (P) of this rule that the owner or
operator is no longer required by this rule to maintain financial assurance for
corrective measures.
(10) The surety shall not be liable for
deficiencies in the completion of corrective measures 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 corrective measures.
(J) Corrective measures letter of credit.
(1) The owner or operator may satisfy this
rule by obtaining an irrevocable standby letter of credit ("letter of credit")
which
that
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 paragraph (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. 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 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 (G) 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 placed in the operating record in accordance with rule
3745-27-09 of the Administrative
Code.
(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 (G) of this rule.
(ii)
Updating of " Schedule A" of the trust agreement to show
the current corrective measures cost
estimate .
(iii) Annual valuations
as required by
specified in the trust agreement.
(iv) Notices of nonpayment as
required by
specified in 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 sanitary
solid waste
landfill facility and the owner and the
operator and the amount of funds assured for corrective measures 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
not later than 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 corrective measures
cost estimate , except as provided in paragraph (N) of this rule.
(7) Whenever the current corrective measures
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 corrective measures 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, or obtain alternate
alternative financial assurance, as specified in this
rule, to compensate for the increase. Whenever the current corrective measures
cost estimate decreases, the letter of credit may be reduced to the amount of
the current corrective measures cost estimate following written approval by the
director . Notice of an increase or a proposed decrease in the amount of the
letter of credit shall be sent to the director by certified mail or any other
form of mail accompanied by a receipt not later than sixty days after the
change.
(8) Under the terms of the
letter of credit, the director may draw on the letter of credit following a
determination that the owner or operator has failed to do the following:
(a) Perform corrective measures activities in
accordance with the applicable authorizing document, including the permit to
install or plan approval.
(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 and operator and the director have received notice from the issuing
institution that it will not extend the letter of credit beyond the current
expiration date, the director shall draw on the letter of credit. The director
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 occurs:
(a) The owner or operator substitutes
alternate
alternative financial assurance for corrective
measures as specified in this rule.
(b) The director notifies the owner or
operator , in accordance with paragraph (P) of this rule, that the owner or operator is no longer required to
maintain financial assurance for corrective measures.
(K) Corrective measures insurance.
(1) The owner or operator may satisfy this
rule by obtaining corrective measures insurance which
that conforms to
this paragraph and by submitting a originally signed certificate of such
insurance to the director by certified mail or any other form of mail
accompanied by a receipt within the time period outlined in paragraph (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. 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 described by the director .
(3) The corrective measures insurance policy
shall be issued for a face amount at least equal to the current corrective
measures cost estimate except as provided in paragraph (N) 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 corrective
measures insurance policy shall guarantee that funds will be available to
perform corrective measures whenever mandated. The policy shall also guarantee
that once corrective measures 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
corrective measures.
After beginning corrective measures, the 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 (K)(8) of this
rule. Failure to pay the premium, without substitution of
alternate
alternative financial assurance as specified in this
rule, will 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 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
one of the following occurs on or before the date
of expiration:
(a) Corrective measures
activities required
specified in the applicable authorizing document,
including permit to install or plan approval have occurred.
(b) The owner or operator is named as debtor
in a voluntary or involuntary proceeding under title 11 (bankruptcy), U.S.
Code.
(c) The premium due is
paid.
(9) Whenever the
current corrective measures 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 corrective measures 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, or obtain alternate
alternative financial assurance as specified in this
rule to compensate for the increase. Whenever the current corrective measures
cost estimate decreases, the face amount may be reduced to the amount of the
current corrective measures cost estimate following written approval by the
director .
(10) The director will
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 corrective
measures as specified in this rule.
(b) The director notifies the owner or
operator , in accordance with paragraph (P) of this rule that owner or operator
is no longer required to maintain financial assurance for corrective
measures.
(L)
Financial test and corporate guarantee for corrective measures.
(1) The owner or operator may satisfy this
rule by demonstrating that the owner or operator passes a financial test as
specified in this paragraph. To pass this test the owner or operator shall
demonstrate that less than fifty per cent of the parent corporation 's gross
revenues are derived from solid waste disposal, solid waste transfer facility
operations, or scrap tire transporter 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
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 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 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 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."
Owner and 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 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 located 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 (L)(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:
(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
that 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 (L)(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, not later than ninety days after the close of each succeeding fiscal
year. This information shall include all three items specified in paragraph
(L)(3) of this rule.
(5) If the
owner or operator no longer meets paragraph (L)(1) of this rule,
notice
the owner or
operator
shall be sent
send a notice 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
of paragraph (L)(1) of this rule.
A copy of the notice
The owner or operator
shall also
be placed
place a
copy of the notice in the operating record. 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 (L)(1) of this
rule, require reports of financial condition at any time from the owner or
operator in addition to those specified in paragraph (L)(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 (L)(1) of this rule, the owner or
operator shall provide alternate
alternative financial assurance as specified in this
rule not later than thirty days after notification of such a finding.
(7) The director may disallow use of this
test on the basis of qualifications in the opinion expressed by the independent
certified public accountant in the independent certified public accountant's
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
alternative financial assurance as specified in this
rule not later than thirty days after notification of the
disallowance.
(8) During the period
of corrective measures, the director may approve in writing a decrease in the
current corrective measures cost estimate , if the owner or operator
demonstrates, to the satisfaction of the director , that the amount of the
corrective measures cost estimate exceeds the cost of the remaining corrective
measures activities. Whenever the current corrective measures cost estimate
decreases, the amount listed on the chief financial officer's letter may be
reduced to the amount of the current corrective measures cost estimate
following written approval by the director .
(9) The owner or operator is no longer
required to submit the items specified in paragraph (L)(3) of this rule when
either of the following occur:
(a) The owner
or operator substitutes alternate
alternative financial assurance for corrective
measures as specified in this rule.
(b) The director notifies the owner or
operator , in accordance with paragraph (P) of this rule that the owner or
operator is no longer required to maintain financial assurance for corrective
measures.
(10) The owner
or operator may meet this rule by obtaining a written guarantee, hereafter
referred to as a corporate guarantee. The guarantor shall be a parent
corporation of the owner or operator . The guarantor shall meet the requirements
for an owner or operator in paragraphs (L)(1) to (L)(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 (L)(3) of
this rule. The terms of the corporate guarantee shall provide the following:
(a) The owner or operator
shall perform corrective measures
of a facility provided for by the corporate
guarantee in accordance with the applicable authorizing document, including
permit to install or plan approval.
(b) The guarantor shall perform the activities
specified in paragraph (L)(10)(a) of this rule or
shall establish a trust fund in the name of
the owner or operator as specified in paragraph (G) of this rule if the owner
or operator fails to performs
perform those activities.
(c) The corporate guarantee
shall remain
remains in force unless the guarantor sends notice of
cancellation by certified mail or any other form of mail accompanied by a
receipt to the owner or operator and to the director . Cancellation may not
occur, however, during the one hundred twenty day period beginning on the first
day that both the owner or operator and the director have received notice of
cancellation, as evidenced by the return receipts.
(d) If the owner or operator fails to provide
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 .
(M) Local government financial
test for corrective measures.
(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 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
record-keeping 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
are
prepared in accordance with "Generally Accepted Accounting Principles" for
local governments.
(b) A local
government shall not have
has not 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
is not
currently be in default on any outstanding general obligation bonds.
(d) A local government
shall
does not
have any outstanding general obligation bonds rated lower than BBB as issued by
"Standard and Poor's" or Baa as issued by "Moody's." Local governments using
bonds that are secured by collateral or a guarantee shall meet the minimum
rating without that security.
(3) In addition to satisfy
satisfying the
financial component of the test, a local government shall meet either of the
following
criteria :
(a) The local government shall have 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 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
shall 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 that the test is used, identify the current cost estimates
in either its budget or its comprehensive annual financial report. The
facility
solid waste
landfill
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
specified activity must
shall be
recorded. If the financial assurance obligation is to be included in the
budget, it should either be listed as an approved budgeted line item, if the
obligation will arise during the budget period, or in an appropriate
supplementary data section, if the obligation will not arise during the budget
period. If the information is to be included in the comprehensive annual
financial report, it is to be included in the financial section as a footnote
to the annual financial statements.
(5) To demonstrate that a local government
meets the requirements of this test, the following three items
must
shall be
submitted to the director , and into the operating record in accordance with
rule 3745-27-09 of the Administrative
Code:
(a) A letter signed by the local
government's chief financial officer and worded as specified in paragraph (H)
of rule 3745-27-17 of the Administrative
Code on forms prescribed by the director as follows:
(i) Lists all the current cost estimates
covered by a financial test.
(ii)
Certifies that the local government meets the conditions of paragraph (M)(1) of
this rule.
(iii) Provides evidence
and certifies that the local government meets the conditions of either
paragraph (M)(2)(a) or (M)(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
shall 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
that 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 account or auditor of the
state states that the independent certified public account or auditor of the
state 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, 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, notice
the local government shall be sent
send a notice
to the director of the intent to establish alternate
alternative
financial assurance as specified in this rule. The
notice shall 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
The local government shall
also be placed
place
a copy of the notice in the operating record. 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 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 corrective
measures as specified in this rule.
(b) The director notifies the local
government, in accordance with paragraph (P) of this rule, that the local
government is no longer required to maintain financial assurance for corrective
measures of the facility.
(N) Use of multiple financial assurance
mechanisms.
The each
facility
the which shall provide
that provides financial assurance for an amount at
least equal to the
(O) Use of a financial mechanism for multiple
facilities.
The this
rule
the financial assurance obligations
for more than one facility
facility
facility
(P) Release
of the owner or operator of a solid waste facility from the requirements of
this rule. The director shall notify the owner or operator in writing that
he
the owner or
operator
is no longer required, by
this rule, to maintain financial assurance
for corrective measures at a particular
facility
the solid waste landfill
, unless
the director has reason to believe that corrective measures have not been
completed in accordance with the requirements of the applicable authorizing
document, including permit to install or plan approval.
[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
the Circular 570 is available at http://www.gpo.gov/fdsys/.]
Notes
Promulgated Under: 119.03
Statutory Authority: 3734.02
Rule Amplifies: 3734.02, 3734.12, 3734.71, 3734.72, 3734.73, 3734.74
Prior Effective Dates: 06/01/1994, 08/31/1997, 09/01/2002, 01/01/2017
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