Utah Admin. Code R315-261-143 - Financial Requirements for Management of Excluded Hazardous Secondary Materials - Financial Assurance Condition

As provided in Subsection R315-261-4(a)(24)(vi)(F), an owner or operator of a reclamation or intermediate facility shall have financial assurance as a condition of the exclusion as required under Subsection R315-261-4(a)(24). The owner or operator shall choose from the options as specified in Subsections R315-261-143(a) through R315-261-143(e).

(a) Trust fund.

(1) An owner or operator may satisfy the requirements of Section R315-261-143 by establishing a trust fund that conforms to the requirements of Subsection R315-261-143(a) and submitting an originally signed duplicate of the trust agreement to the director. The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

(2) The wording of the trust agreement shall be identical to the wording specified in Subsection R315-261-151(a)(1), and the trust agreement shall be accompanied by a formal certification of acknowledgment, for example, see Subsection R315-261-151(a)(2). Schedule A of the trust agreement shall be updated within 60 days after a change in the amount of the current cost estimate covered by the agreement.

(3) The trust fund shall be funded for the full amount of the current cost estimate before it may be relied upon to satisfy the requirements of Section R315-261-143.

(4) If the current cost estimate changes, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 60 days after the change in the cost estimate, shall either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current cost estimate, or get other financial assurance as specified in Section R315-261-143 to cover the difference.

(5) 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 director for release of the amount in excess of the current cost estimate.

(6) If an owner or operator substitutes other financial assurance as specified in Section R315-261-143 for the trust fund or part of the trust fund, the owner or operator may submit a written request to the director for release of the amount in excess of the current cost estimate covered by the trust fund.

(7) Within 60 days after receiving a request from the owner or operator for release of funds as specified in Subsection R315-261-143(a)(5) or R315-261-143(a)(6), the director shall instruct the trustee to release to the owner or operator those funds that the director specifies in writing. If the owner or operator begins final closure under Sections R315-264-110 through R315-264-120 or R315-265-110 through R315-265-121, an owner or operator may request reimbursements for partial or final closure expenditures by submitting itemized bills to the director. The owner or operator may request reimbursements for partial closure only if enough funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. No later than 60 days after receiving bills for partial or final closure activities, the director shall instruct the trustee to make reimbursements in those amounts as the director specifies in writing, if the director determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the director has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, the director may withhold reimbursements of any amounts that the director considers prudent until the director determines, in accordance with Subsection R315-261-143(i) that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the director does not instruct the trustee to make the reimbursements, the director shall provide to the owner or operator a detailed written statement of reasons.

(8) The director shall agree to termination of the trust if:

(i) an owner or operator substitutes alternate financial assurance as specified in Section R315-261-143; or

(ii) the director releases the owner or operator from the requirements of Section R315-261-143 in accordance with Subsection R315-261-143(i).

(b) Surety bond guaranteeing payment into a trust fund.

(1) An owner or operator may satisfy the requirements of Section R315-261-143 by getting a surety bond that conforms to the requirements of Subsection R315-261-143(b) and submitting the bond to the director. The surety company issuing the bond shall, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. Department of the Treasury.

(2) The wording of the surety bond shall be identical to the wording specified in Subsection R315-261-151(b).

(3) The owner or operator who uses a surety bond to satisfy the requirements of Section R315-261-143 shall also establish a standby trust fund. Under the terms of the bond, any payments made thereunder shall 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 Subsection R315-261-143(a), except that:

(i) an originally signed duplicate of the trust agreement shall be submitted to the director with the surety bond; and

(ii) until the standby trust fund is funded pursuant to the requirements of Section R315-261-143, the owner or operator is not required to comply with Subsections R315-261-143(b)(3)(ii)(A) through R315-261-143(b)(3)(ii)(D):

(A) Payments into the trust fund as specified in Subsection R315-261-143(a);

(B) Updating of Schedule A of the trust agreement, see Subsection R315-261-151(a), to show current cost estimates;

(C) Annual valuations as required by the trust agreement; and

(D) Notices of nonpayment as required by the trust agreement.

(4) The bond shall guarantee that the owner or operator shall:

(i) fund the standby trust fund in an amount equal to the penal sum of the bond before loss of the exclusion under Subsection R315-261-4(a)(24); or

(ii) fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin closure issued by the director becomes final, or within 15 days after an order to begin closure is issued by a U.S. district court or other court of competent jurisdiction; or

(iii) provide alternate financial assurance as specified in Section R315-261-143, and get the director's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the director of a notice of cancellation of the bond from the surety.

(5) Under the terms of the bond, the surety shall become liable on the bond obligation if 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 cost estimate, except as provided in Subsection R315-261-143(f).

(7) If the current cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, shall either cause the penal sum to be increased to an amount at least equal to the current cost estimate and submit evidence of the increase to the director, or get other financial assurance as specified in Section R315-261-143 to cover the increase. If the current cost estimate decreases, the penal sum may be reduced to the amount of the current cost estimate following written approval by the director.

(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the director, as evidenced by the return receipts.

(9) The owner or operator may cancel the bond if the director has given earlier written consent based on the director's receipt of evidence of alternate financial assurance as specified in Section R315-261-143.

(c) Letter of credit.

(1) An owner or operator may satisfy the requirements of Section R315-261-143 by getting an irrevocable standby letter of credit that conforms to the requirements of Subsection R315-261-143(c) and submitting the letter to the director. The issuing institution shall be an entity that 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 Subsection R315-261-151(c).

(3) An owner or operator who uses a letter of credit to satisfy the requirements of Section R315-261-143 shall also establish a standby trust fund. Under the terms of the letter of credit, any amounts paid pursuant to a draft by the director shall be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the director. This standby trust fund shall meet the requirements of the trust fund specified in Subsection R315-261-143(a), except that:

(i) an originally signed duplicate of the trust agreement shall be submitted to the director with the letter of credit; and

(ii) unless the standby trust fund is funded pursuant to the requirements of Section R315-261-143, the owner or operator is not required to comply with Subsections R315-261-143(c)(3)(ii)(A) through R315-261-143(c)(3)(ii)(D):

(A) Payments into the trust fund as specified in Subsection R315-261-143(a);

(B) Updating of Schedule A of the trust agreement, see Subsection R315-261-151(a), to show current cost estimates;

(C) Annual valuations as required by the trust agreement; and

(D) 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 EPA Identification Number, if any issued; name; and address of the facility; and the amount of funds assured for the facility by the letter of credit.

(5) The letter of credit shall be irrevocable and issued for a period of at least 1 year. The letter of credit shall provide that the expiration date shall be automatically extended for a period of at least 1 year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the director by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date 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 cost estimate, except as provided in Subsection R315-261-143(f).

(7) If the current cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increase, shall either cause the amount of the credit to be increased so that it at least equals the current cost estimate and submit evidence of the increase to the director, or get other financial assurance as specified in Section R315-261-143 to cover the increase. If the current cost estimate decreases, the amount of the credit may be reduced to the amount of the current cost estimate following written approval by the director.

(8) Following a determination by the director that the hazardous secondary materials do not meet the conditions of the exclusion under Subsection R315-261-4(a)(24), the director may draw on the letter of credit.

(9) If the owner or operator does not establish alternate financial assurance as specified in Section R315-261-143 and get written approval of the alternate assurance from the director within 90 days after receipt by both the owner or operator and the director of a notice from the issuing institution that it has decided not to 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 last 30 days of any extension the director shall draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in Section R315-261-143 and get written approval of the assurance from the director.

(10) The director shall return the letter of credit to the issuing institution for termination if:

(i) an owner or operator substitutes alternate financial assurance as specified in Section R315-261-143; or

(ii) the director releases the owner or operator from the requirements of Section R315-261-143 in accordance with Subsection R315-261-143(i).

(d) Insurance.

(1) An owner or operator may satisfy the requirements of Section R315-261-143 by getting insurance that conforms to the requirements of Subsection R315-261-143(d) and submitting a certificate of insurance to the director. 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 Utah.

(2) The wording of the certificate of insurance shall be identical to the wording specified in Subsection R315-261-151(d).

(3) The insurance policy shall be issued for a face amount at least equal to the current cost estimate, except as provided in Subsection R315-261-143(f). The term "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 shall be lowered by the amount of the payments.

(4) The insurance policy shall guarantee that funds shall be available when needed to pay the cost of removal of any hazardous secondary materials from the unit, to pay the cost of decontamination of the unit, to pay the costs of the performance of activities required under Sections R315-264-110 through R315-264-120 or R315-265-110 through R315-265-121, as applicable, for the facilities covered by this policy. The policy shall also guarantee that once funds are needed, the insurer shall 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 the party or parties as the director specifies.

(5) After beginning partial or final closure under Rule R315-264 or R315-265, as applicable, an owner or operator or any other authorized person may request reimbursements for closure expenditures by submitting itemized bills to the director. The owner or operator may request reimbursements only if the remaining value of the policy is enough to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the director shall instruct the insurer to make reimbursements in the amounts that the director specifies in writing if the director determines that the expenditures are in accordance with the approved plan or otherwise justified. If the director has reason to believe that the maximum cost over the remaining life of the facility will be significantly greater than the face amount of the policy, the director may withhold reimbursement of any amounts that the director considers prudent until the director determines, in accordance with Subsection R315-261-143(h), that the owner or operator is no longer required to maintain financial assurance for the particular facility. If the director does not instruct the insurer to make the reimbursements, the director shall provide to the owner or operator a detailed written statement of reasons.

(6) The owner or operator shall maintain the policy in effect until the director consents to termination of the policy by the owner or operator as specified in Subsection R315-261-143(i)(10). Failure to pay the premium, without substitution of alternate financial assurance as specified in Section R315-261-143, shall constitute a significant violation of Section R315-261-143 warranting a remedy that the director considers necessary. The violation shall be considered 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. The assignment may be conditional upon consent of the insurer, provided the consent is not unreasonably refused.

(8) The policy shall provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the director. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the director and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy shall remain in effect if on or before the date of expiration:

(i) the director considers the facility abandoned; or

(ii) conditional exclusion or interim status is lost, terminated, or revoked; or

(iii) closure is ordered by the director or a U.S. district court or other court of competent jurisdiction; or

(iv) the owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11, Bankruptcy, U.S. Code; or

(v) the premium due is paid.

(9) If the current cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within 60 days after the increase, shall either cause the face amount to be increased to an amount at least equal to the current cost estimate and submit evidence of the increase to the director, or get other financial assurance as specified in Section R315-261-143 to cover the increase. If the current cost estimate decreases, the face amount may be reduced to the amount of the current cost estimate following written approval by the director.

(10) The director shall give written consent to the owner or operator that the owner or operator may terminate the insurance policy if:

(i) an owner or operator substitutes alternate financial assurance as specified in Section R315-261-143; or

(ii) the director releases the owner or operator from the requirements of Section R315-261-143 in accordance with Subsection R315-261-143(i).

(e) Financial test and corporate guarantee.

(1) An owner or operator may satisfy the requirements of Section R315-261-143 by demonstrating that the owner or operator passes a financial test as specified in Subsection R315-261-143(e). To pass this test the owner or operator shall meet the criteria of either Subsection R315-261-143(e)(1)(i) or R315-261-143(e)(1)(ii):

(i) The owner or operator shall have:

(A) two of the following three ratios: A ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and

(B) net working capital and tangible net worth each at least six times the sum of the current cost estimates and the current plugging and abandonment cost estimates; and

(C) tangible net worth of at least $10 million; and

(D) assets located in the United States amounting to at least 90% of total assets or at least six times the sum of the current cost estimates and the current plugging and abandonment cost estimates.

(ii) The owner or operator shall have:

(A) a current rating for the owner or operator's most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and

(B) tangible net worth at least six times the sum of the current cost estimates and the current plugging and abandonment cost estimates; and

(C) tangible net worth of at least $10 million; and

(D) assets located in the United States amounting to at least 90% of total assets or at least six times the sum of the current cost estimates and the current plugging and abandonment cost estimates.

(2) The phrase "current cost estimates" as used in Subsection R315-261-143(e)(1) refers to the cost estimates required to be shown in paragraphs 1-4 of the letter from the owner's or operator's chief financial officer, Subsection R315-261-151(e). The phrase "current plugging and abandonment cost estimates" as used in Subsection R315-261-143(e)(1) refers to the cost estimates required to be shown in paragraphs 1-4 of the letter from the owner's or operator's chief financial officer, 40 CFR 144.70(f).

(3) To demonstrate that the owner or operator meets this test, the owner or operator shall submit the items required by Subsections R315-261-143(e)(3)(i) through R315-261-143(e)(3)(iii) to the director:

(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in Subsection R315-261-151(e); and

(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

(iii) If the chief financial officer's letter providing evidence of financial assurance includes financial data showing that the owner or operator satisfies Subsection R315-261-143(e)(1)(i) that are different from the data in the audited financial statements referred to in Subsection R315-261-143(e)(3)(ii) or any other audited financial statement or data filed with the SEC, then a special report from the owner's or operator's independent certified public accountant to the owner or operator is required. The special report shall be based upon an agreed upon procedures engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in the financial statements, the findings of the comparison, and the reasons for any differences.

(4) The owner or operator may get an extension of the time allowed for submission of the documents specified in Subsection R315-261-143(e)(3) if the fiscal year of the owner or operator ends during the 90 days before the effective date of Rule R315-261 and if the year-end financial statements for that fiscal year shall be audited by an independent certified public accountant. The extension shall end no later than 90 days after the end of the owner's or operator's fiscal year. To get the extension, the owner's or operator's chief financial officer shall send, by the effective date of Rule R315-261, a letter to the director. This letter from the chief financial officer shall:

(i) request the extension;

(ii) certify that the chief financial officer has grounds to believe that the owner or operator meets the criteria of the financial test;

(iii) specify for each facility to be covered by the test the EPA Identification Number, if any are issued; name, address, and current cost estimates to be covered by the test;

(iv) specify the date ending the owner's or operator's last complete fiscal year before the effective date of Sections R315-261-140 through R315-261-143 and R315-261-147 through R315-261-151;

(v) specify the date, no later than 90 days after the end of the fiscal year, when the chief financial officer shall submit the documents specified in Subsection R315-261-143(e)(3); and

(vi) certify that the year-end financial statements of the owner or operator for the fiscal year shall be audited by an independent certified public accountant.

(5) After the initial submission of items specified in Subsection R315-261-143(e)(3), the owner or operator shall send updated information to the director within 90 days after the close of each succeeding fiscal year. This information shall consist of the three items specified in Subsection R315-261-143(e)(3).

(6) If the owner or operator no longer meets the requirements of Subsection R315-261-143(e)(1), the owner or operator shall send notice to the director of intent to establish alternate financial assurance as specified in Section R315-261-143. The notice shall be sent by certified mail within 90 days after the end of the fiscal year that the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within 120 days after the end of the fiscal year.

(7) The director may, based on a reasonable belief that the owner or operator may no longer meet the requirements of Subsection R315-261-143(e)(1), require reports of financial condition at any time from the owner or operator in addition to those specified in Subsection R315-261-143(e)(3). If the director finds, on the basis of the reports or other information, that the owner or operator no longer meets the requirements of Subsection R315-261-143(e)(1), the owner or operator shall provide alternate financial assurance as specified in Section R315-261-143 within 30 days after notification of such a finding.

(8) The director may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in their report on examination of the owner's or operator's financial statements, see Subsection R315-261-143(e)(3)(ii). An adverse opinion or a disclaimer of opinion shall 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 Section R315-261-143 within 30 days after notification of the disallowance.

(9) The owner or operator is no longer required to submit the items specified in Subsection R315-261-143(e)(3) if:

(i) an owner or operator substitutes alternate financial assurance as specified in Section R315-261-143; or

(ii) the director releases the owner or operator from the requirements of Section R315-261-143 in accordance with Subsection R315-261-143(i).

(10) An owner or operator may meet the requirements of Section R315-261-143 by getting a written guarantee. The guarantor shall be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a substantial business relationship with the owner or operator. The guarantor shall meet the requirements for owners or operators in Subsections R315-261-143(e)(1) through R315-261-143(e)(8) and shall comply with the terms of the guarantee. The wording of the guarantee shall be identical to the wording specified in Subsection R315-261-151(g)(1). A certified copy of the guarantee shall accompany the items sent to the director as specified in Subsection R315-261-143(e)(3). One of these items shall be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a substantial business relationship with the owner or operator, this letter shall describe this substantial business relationship and the value received in consideration of the guarantee. The terms of the guarantee shall provide that:

(i) Following a determination by the director that the hazardous secondary materials at the owner or operator's facility covered by this guarantee do not meet the conditions of the exclusion under Subsection R315-261-4(a)(24), the guarantor shall dispose of any hazardous secondary material as hazardous waste and close the facility in accordance with closure requirements found in Rule R315-264 or R315-265, as applicable, or establish a trust fund as specified in Subsection R315-261-143(a) in the name of the owner or operator in the amount of the current cost estimate.

(ii) The corporate guarantee shall remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the director. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the director, as evidenced by the return receipts.

(iii) If the owner or operator fails to provide alternate financial assurance as specified in Section R315-261-143 and get the written approval of the alternate assurance from the director within 90 days after receipt by both the owner or operator and the director of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor shall provide the alternate financial assurance in the name of the owner or operator.

(f) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of Section R315-261-143 by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds, letters of credit, and insurance. The mechanisms shall be as specified in Subsections R315-261-143(a) through R315-261-143(d), except that it is the combination of mechanisms, rather than the single mechanism, which shall provide financial assurance for an amount at least equal to the current 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 use any or all the mechanisms to provide for the facility.

(g) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in Section R315-261-143 to meet the requirements of Section R315-261-143 for more than one facility. Evidence of financial assurance submitted to the director shall include a list showing, for each facility, the EPA Identification Number, if any issued; name, address, and the amount of funds assured by the mechanism. In directing funds available through the mechanism for any of the facilities covered by the mechanism, the director may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.

(h) Removal and Decontamination Plan for Release.

(1) An owner or operator of a reclamation facility or an intermediate facility who wishes to be released from the owner or operator's financial assurance obligations under Subsection R315-261-4(a)(24)(vi)(F) shall submit a plan for removing the hazardous secondary material residues to the director at least 180 days before the date that the owner or operator expects to stop operating under the exclusion.

(2) The plan shall include, at least:

(A) for each hazardous secondary materials storage unit subject to financial assurance requirements under Subsection R315-261-4(a)(24)(vi)(F), a description of how the excluded hazardous secondary materials shall be recycled or sent for recycling, and how the residues, contaminated containment systems, liners, contaminated soils; subsoils; structures; and equipment shall be removed or decontaminated as necessary to protect human health and the environment; and

(B) a detailed description of the steps necessary to remove or decontaminate the hazardous secondary material residues and contaminated containment system components, equipment, structures, and soils including procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination necessary to protect human health and the environment; and

(C) a detailed description of any other activities necessary to protect human health and the environment during this timeframe, including leachate collection, run-on and run-off control; and

(D) a schedule for conducting the activities described that, at a minimum, includes the total time required to remove the excluded hazardous secondary materials for recycling and decontaminate the units subject to financial assurance under Subsection R315-261-4(a)(24)(vi)(F) and the time required for intervening activities that will allow tracking of the progress of decontamination.

(3) The director shall provide the owner or operator and the public, through a newspaper notice, the opportunity to submit written comments on the plan and request modifications to the plan no later than 30 days from the date of the notice. The director shall also, in response to a request or at the director's discretion, hold a public hearing if such a hearing might clarify one or more issues concerning the plan. The director shall give public notice of the hearing at least 30 days before it occurs. Public notice of the hearing may be given when notice of the opportunity for the public to submit written comments is given, and the two notices may be combined. The director shall approve, modify, or disapprove the plan within 90 days of its receipt. If the director does not approve the plan, the director shall provide the owner or operator with a detailed written statement of reasons for the refusal and the owner or operator shall modify the plan or submit a new plan for approval within 30 days after receiving the written statement. The director shall approve or modify this plan in writing within 60 days. If the director modifies the plan, this modified plan becomes the approved plan. The director shall assure that the approved plan is consistent with Subsection R315-261-143(h). A copy of the modified plan with a detailed statement of reasons for the modifications shall be mailed to the owner or operator.

(4) Within 60 days of completion of the activities described for each hazardous secondary materials management unit, the owner or operator shall submit to the director, by registered mail, a certification that the hazardous secondary materials have been removed from the unit and the unit has been decontaminated in accordance with the specifications in the approved plan. The certification shall be signed by the owner or operator and by a qualified Professional Engineer. Documentation supporting the Professional Engineer's certification shall be furnished to the director, upon request, until the director releases the owner or operator from the financial assurance requirements for Subsection R315-261-4(a)(24)(vi)(F).

(i) Release of the owner or operator from the requirements of Section R315-261-143. Within 60 days after receiving certifications from the owner or operator and a qualified Professional Engineer that the hazardous secondary materials have been removed from the facility or a unit at the facility and the facility or a unit has been decontaminated in accordance with the approved plan as required in Subsection R315-261-143(h), the director shall notify the owner or operator in writing that the owner or operator is no longer required under Subsection R315-261-4(a)(24)(vi)(F) to maintain financial assurance for that facility or a unit at the facility, unless the director has reason to believe that the hazardous secondary materials have not been removed from the facility or unit at a facility or that the facility or unit has not been decontaminated in accordance with the approved plan. The director shall provide the owner or operator a detailed written statement of any reason to believe that the hazardous secondary materials have not been removed from the unit or that the unit has not been decontaminated in accordance with the approved plan.

Notes

Utah Admin. Code R315-261-143

Adopted by Utah State Bulletin Number 2016-9, effective 4/15/2016 Amended by Utah State Bulletin Number 2025-02, effective 1/13/2025