30 Tex. Admin. Code § 37.201 - Trust Fund
(a) An owner or
operator may satisfy the requirements of financial assurance by establishing
either a fully funded trust or a pay-in trust which conforms to the
requirements of this section, in addition to the requirements specified in
Subchapters A and B of this chapter (relating to General Financial Assurance
Requirements and Financial Assurance Requirements for Closure, Post Closure,
and Corrective Action), and submitting an originally signed duplicate of the
executed trust agreement to the executive director.
(b) The trustee must be an entity which has
the authority to act as a trustee and whose trust operations are regulated and
examined by a federal or state agency.
(c) The wording of the trust agreement must
be identical to the wording specified in §
37.301(a) of
this title (relating to Trust Agreement) including a formal certification of
acknowledgment as specified in §
37.301(b) of
this title.
(d) Schedule A of the
trust agreement as specified in §
37.301(a) of
this title must be updated within 60 days after an approved change in the
amount of the current cost estimate or annual inflation adjustments.
(e) A fully funded trust requires that the
initial payment into the trust fund be at least equal to the current cost
estimate, or when a combination of mechanisms are used in accordance with
§
37.41 of this title (relating to
Use of Multiple Financial Assurance Mechanisms), the initial payment plus the
amount of the combined mechanism(s) must be at least equal to the current cost
estimate. A receipt from the trustee for the initial payment must be submitted
by the owner or operator to the executive director with the originally signed
duplicate of the trust agreement.
(f) In the case of a pay-in trust for closure
or post closure, payments into the trust fund must be made annually by the
owner or operator over the term of the initial permit or over the remaining
life of the facility, whichever is shorter. In the case of a pay-in trust for
corrective action for known releases, the payments into the trust fund must be
made annually by the owner or operator over one-half of the estimated length of
the corrective action program. The periods referred to in this subsection are
the pay-in periods. The payments into the trust fund must be made in accordance
with this subsection. During the period of post closure, a pay-in trust for
post closure may not be used.
(1) For a pay-in
trust used to demonstrate financial assurance for closure and post closure, the
first payment into the fund must be at least equal to the current cost estimate
for closure or post closure, less the amount of the combined mechanisms,
divided by the number of years in the pay-in period. Subsequent payments must
be made no later than 30 days after each anniversary date of the first payment.
The amount of subsequent payments must be determined by the following formula:
(2) For
a pay-in trust used to demonstrate financial assurance for corrective action,
the first payment into the trust fund must be at least equal to one-half of the
current cost estimate for corrective action, less the amount of the combined
mechanisms, divided by the number of years in the corrective action pay-in
period. The amount of subsequent payments must be determined by the following
formula:
(3) The
owner or operator may accelerate payments into the trust fund or may deposit
the full amount of the current cost estimate at the time the fund is
established. However, the owner or operator must maintain the value of the fund
at no less than the value that the fund would have if annual payments were made
as specified in paragraphs (1) or (2) of this subsection.
(4) If the owner or operator establishes a
trust fund after having used another financial assurance mechanism, the first
payment must be at least equal to the amount that the fund would contain if the
trust fund was established when the permit was initially issued, and subsequent
payments must be made as specified in paragraphs (1) or (2) of this
subsection.
(g) After
the initial payment for a fully funded trust or after the pay-in period is
completed for a pay-in trust, whenever the current cost estimate changes, the
owner or operator must compare the new estimate with the trustee's most recent
annual valuation of the trust fund. If the value of the fund is less than the
amount of the new estimate, the owner or operator, within 30 days after the
change in the current cost estimate, must either deposit an amount into the
fund so that its value after this deposit at least equals the amount of the
current cost estimate, or obtain an additional financial assurance mechanism as
specified in this subchapter to cover the difference.
(h) If the value of the trust fund is greater
than the total amount of the current cost estimate, the owner or operator may
submit a written request to the executive director for release of the amount in
excess of the current cost estimate.
(i) Within 60 days after receiving a request
from the owner or operator for release of funds as specified in subsection (h)
of this section, the executive director shall instruct the trustee to release
to the owner or operator such funds as the executive director specifies in
writing.
(j) An owner or operator
or any other person authorized by the executive director to perform closure,
post closure, or corrective action may request reimbursement for closure, post
closure, or corrective action expenditures by submitting itemized bills to the
executive director. The request shall include an explanation of the expenses
and all applicable itemized bills. The owner or operator may request
reimbursements for partial closure only if sufficient funds are remaining in
the trust fund to cover the maximum costs of closing the facility over its
remaining operating life. After receiving bills for closure, post closure, or
corrective action activities, the executive director shall instruct the trustee
to make reimbursement in such amounts as the executive director specifies in
writing, if the executive director determines that the partial or final
closure, post closure, or corrective action expenditures are in accordance with
the approved closure plan, post closure plan, or corrective action activities,
or are otherwise justified. If the executive director has reason to believe
that the cost of closure, post closure, or corrective action over the remaining
life of the facility will be greater than the value of the trust fund, the
executive director may withhold reimbursement of such amounts as deemed prudent
until it is determined, in accordance with Subchapters A and B of this chapter
(relating to General Financial Assurance Requirements and Financial Assurance
Requirements for Closure, Post Closure, and Corrective Action) that the owner
or operator is no longer required to maintain financial assurance for final
closure, post closure, or corrective action at the facility.
(k) If an owner or operator substitutes other
financial assurance as specified in this section for all or part of the trust
fund, the owner or operator may submit a written request to the executive
director for release of the amount in excess of the current cost estimate
covered by the trust fund.
Notes
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