Utah Admin. Code R315-264-143 - Financial Assurance for Closure
An owner or operator of each
(a) Closure trust fund.
(1) An owner or operator may satisfy the
requirements of Section R315-264-143 by establishing a closure trust fund which
conforms to the requirements of Subsection R315-264-143(a) and submitting an
originally signed duplicate of the trust agreement to the Director . An owner or
operator of a new facility shall submit the originally signed duplicate of the
trust agreement to the Director at least 60 days before the date on which
hazardous waste is first received for treatment, storage, or disposal. The
trustee shall 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.
(2) The wording of the trust
agreement shall be identical to the wording specified in Subsection
R315-264-151(a)(1),
and the trust agreement shall be accompanied by a formal certification of
acknowledgment, for example, see Subsection
R315-264-151(a)(2).
Schedule A of the trust agreement shall be updated within 60 days after a
change in the amount of the current closure cost estimate covered by the
agreement.
(3) Payments into the
trust fund shall be made annually by the owner or operator over the term of the
initial RCRA permit or over the remaining operating life of the facility as
estimated in the closure plan , whichever period is shorter; this period is
hereafter referred to as the "pay-in period." The payments into the closure
trust fund shall be made as follows:
(i) For
a new facility , the first payment shall be made before the initial receipt of
hazardous waste for treatment, storage, or disposal. A receipt from the trustee
for this payment shall be submitted by the owner or operator to the Director
before this initial receipt of hazardous waste . The first payment shall be at
least equal to the current closure cost estimate , except as provided in
Subsection R315-264-143(g), divided by the number of years in the pay-in
period. Subsequent payments shall be made no later than 30 days after each
anniversary date of the first payment. The amount of each subsequent payment
shall be determined by this formula:
Next Payment = (CE-CV)/Y
where CE is the
(ii) If an
owner or operator establishes a trust fund as specified in
40 CFR
265.143(a), which is adopted
by reference; and the value of that trust fund is less than the current closure
cost estimate when a permit is awarded for the facility , the amount of the
current closure cost estimate still to be paid into the trust fund shall be
paid in over the pay-in period as defined in Subsection R315-264-143(a)(3).
Payments shall continue to be made no later than 30 days after each anniversary
date of the first payment made pursuant to Rule R315-265. The amount of each
payment shall be determined by this formula:
Next Payment = (CE-CV)/Y
where CE is the
(4) The owner or operator may accelerate
payments into the trust fund or he may deposit the full amount of the current
closure cost estimate at the time the fund is established. However, he shall
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 Subsection
R315-264-143(a)(3).
(5) If the
owner or operator establishes a closure trust fund after having used one or
more alternate mechanisms specified in Section R315-264-143 or in
40 CFR
265.143, which is adopted by reference, his
first payment shall be in at least the amount that the fund would contain if
the trust fund were established initially and annual payments made according to
specifications of Section R315-264-143 and
40 CFR
265.143(a), which is adopted
by reference; as applicable.
(6)
After the pay-in period is completed, whenever the current closure 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 closure cost estimate , or obtain other financial assurance as
specified in Section R315-264-143 to cover the difference.
(7) If the value of the trust fund is greater
than the total amount of the current closure cost estimate , the owner or
operator may submit a written request to the Director for release of the amount
in excess of the current closure cost estimate .
(8) If an owner or operator substitutes other
financial assurance as specified in Section R315-264-143 for all or part of the
trust fund, he may submit a written request to the Director for release of the
amount in excess of the current closure cost estimate covered by the trust
fund.
(9) Within 60 days after
receiving a request from the owner or operator for release of funds as
specified in Subsection R315-264-143(a)(7) or (8), the Director shall instruct
the trustee to release to the owner or operator such funds as the Director
specifies in writing.
(10) After
beginning partial or final closure, an owner or operator or another person
authorized to conduct partial or final closure 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 sufficient funds are remaining in the trust fund to cover the maximum
costs of closing the facility over its remaining operating life. Within 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, he may withhold reimbursements of
such amounts as he deems prudent until he determines, in accordance with
Subsection R315-264-143(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 such reimbursements, he shall provide the
owner or operator with a detailed written statement of reasons.
(11) The Director shall agree to termination
of the trust when:
(i) An owner or operator
substitutes alternate financial assurance as specified in Section R315-264-143;
or
(ii) The Director releases the
owner or operator from the requirements of Section R315-264-143 in accordance
with Subsection R315-264-143(i).
(b) Surety bond guaranteeing payment into a
closure trust fund.
(1) An owner or operator
may satisfy the requirements of Section R315-264-143 by obtaining a surety bond
which conforms to the requirements of Subsection R315-264-143(b) and submitting
the bond to the Director . An owner or operator of a new facility shall submit
the bond to the Director at least 60 days before the date on which hazardous
waste is first received for treatment, storage, or disposal. The bond shall be
effective before this initial receipt of hazardous waste . 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
R315-264-151(b).
(3) The owner or operator who uses
a surety bond to satisfy the requirements Section R315-264-143 shall also
establish a standby trust fund. Under the terms of the bond, all 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 R315-264-143(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 R315-264-143, the
following are not required by these regulations:
(A) Payments into the trust fund as specified
in Subsection R315-264-143(a);
(B)
Updating of Schedule A of the trust agreement, see Subsection
R315-264-151(a),
to show current closure 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 the
beginning of final closure of the facility ; or
(ii) Fund the standby trust fund in an amount
equal to the penal sum within 15 days after an administrative order to begin
final closure issued by the Director becomes final, or within 15 days after an
order to begin final 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 R315-264-143, and obtain 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
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 closure cost estimate ,
except as provided in Subsection R315-264-143(g).
(7) Whenever the current closure 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 closure cost
estimate and submit evidence of such increase to the Director , or obtain other
financial assurance as specified in Section R315-264-143 to cover the increase.
Whenever the current closure cost estimate decreases, the penal sum may be
reduced to the amount of the current closure 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 prior written consent based on his receipt of
evidence of alternate financial assurance as specified in Section R315-264-143.
(c) Surety bond
guaranteeing performance of closure.
(1) An
owner or operator may satisfy the requirements of Section R315-264-143 by
obtaining a surety bond which conforms to the requirements of Subsection
R315-264-143(c) and submitting the bond to the Director . An owner or operator
of a new facility shall submit the bond to the Director at least 60 days before
the date on which hazardous waste is first received for treatment, storage, or
disposal. The bond shall be effective before this initial receipt of hazardous
waste . 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
R315-264-151(c).
(3) The owner or operator who uses
a surety bond to satisfy the requirements Section R315-264-143 shall also
establish a standby trust fund. Under the terms of the bond, all 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
shall meet the requirements specified in Subsection R315-264-143(a), except
that:
(i) An originally signed duplicate of
the trust agreement shall be submitted to the Director with the surety bond;
and
(ii) Unless the standby trust
fund is funded pursuant to the requirements of Section R315-264-143, the
following are not required by Section R315-264-143:
(A) Payments into the trust fund as specified
in Subsection R315-264-143(a);
(B)
Updating of Schedule A of the trust agreement, see Subsection
R315-264-151(a),
to show current closure 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) Perform
final closure in accordance with the closure plan and other requirements of the
permit for the facility whenever required to do so; or
(ii) Provide alternate financial assurance as
specified in Section R315-264-143, and obtain 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 when
the owner or operator fails to perform as guaranteed by the bond. Following a
final administrative determination pursuant to section 3008 of RCRA that the
owner or operator has failed to perform final closure in accordance with the
approved closure plan and other permit requirements when required to do so,
under the terms of the bond the surety shall perform final closure as
guaranteed by the bond or shall 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 closure
cost estimate .
(7) Whenever the
current closure 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
closure cost estimate and submit evidence of such increase to the Director , or
obtain other financial assurance as specified in Section R315-264-143. Whenever
the current closure cost estimate decreases, the penal sum may be reduced to
the amount of the current closure 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 prior written consent. The Director shall provide
such written consent when:
(i) An owner or
operator substitutes alternate financial assurance as specified in Section
R315-264-143; or
(ii) The Director
releases the owner or operator from the requirements of Section R315-264-143 in
accordance with Subsection R315-264-143(i).
(10) The surety shall not be liable for
deficiencies in the performance of closure by the owner or operator after the
Director releases the owner or operator from the requirements of Section
R315-264-143 in accordance with Subsection R315-264-143(i).
(d) Closure letter of credit.
(1) An owner or operator may satisfy the
requirements of Section R315-264-143 by obtaining an irrevocable standby letter
of credit which conforms to the requirements of Subsection R315-264-143(d) and
submitting the letter to the Director . An owner or operator of a new facility
shall submit the letter of credit to the Director at least 60 days before the
date on which hazardous waste is first received for treatment, storage, or
disposal. The letter of credit shall be effective before this initial receipt
of hazardous waste . 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 Subsection
R315-264-151(d).
(3) An owner or operator who uses
a letter of credit to satisfy the requirements of Section R315-264-143 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 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 R315-264-143(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
R315-264-143, the following are not required by Rule R315-264:
(A) Payments into the trust fund as specified
in Subsection R315-264-143(a);
(B)
Updating of Schedule A of the trust agreement, see Subsection
R315-264-151(a),
to show current closure 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, name, and address of the facility ,
and the amount of funds assured for closure of 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 shall 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 closure cost estimate , except as
provided in Subsection R315-264-143(g).
(7) Whenever the current closure 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
closure cost estimate and submit evidence of such increase to the Director , or
obtain other financial assurance as specified in Section R315-264-143 to cover
the increase. Whenever the current closure cost estimate decreases, the amount
of the credit may be reduced to the amount of the current closure cost estimate
following written approval by the Director .
(8) Following a final administrative
determination pursuant to section 3008 of RCRA that the owner or operator has
failed to perform final closure in accordance with the closure plan and other
permit requirements when required to do so, 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 R315-264-143 and obtain written approval of such alternate assurance
from the Director within 90 days after receipt by both the owner or operator
and the Director of a notice from 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 such 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 R315-264-143 and obtain written approval of
such assurance from the Director .
(10) The Director shall return the letter of
credit to the issuing institution for termination when:
(i) An owner or operator substitutes
alternate financial assurance as specified in Section R315-264-143; or
(ii) The Director releases the
owner or operator from the requirements of Section R315-264-143 in accordance
with Subsection R315-264-143(i).
(e) Closure insurance.
(1) An owner or operator may satisfy the
requirements of Section R315-264-143 by obtaining closure insurance which
conforms to the requirements of this Subsection R315-264-143(e) and submitting
a certificate of such insurance to the Director . An owner or operator of a new
facility shall submit the certificate of insurance to the Director at least 60
days before the date on which hazardous waste is first received for treatment,
storage, or disposal. The insurance shall be effective before this initial
receipt of hazardous waste . 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 Subsection
R315-264-151(e).
(3) The closure insurance policy
shall be issued for a face amount at least equal to the current closure cost
estimate , except as provided in Subsection R315-264-143(g). The term "face
amount" means the total amount the insurer is obligated to pay under the
policy. Actual payments by the insurer shall not change the face amount,
although the insurer's future liability shall be lowered by the amount of the
payments.
(4) The closure
insurance policy shall guarantee that funds shall be available to close the
facility whenever final closure occurs. The policy shall also guarantee that
once final closure 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) After beginning partial or
final closure, an owner or operator or any other person authorized to conduct
closure may request reimbursements for closure expenditures by submitting
itemized bills to the Director . The owner or operator may request
reimbursements for partial closure only if the remaining value of the policy is
sufficient 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
such 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 face amount of the policy, he
may withhold reimbursements of such amounts as he deems prudent until he
determines, in accordance with Subsection R315-264-143(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 insurer to make
such reimbursements, he shall provide the owner or operator with a detailed
written statement of reasons.
(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 Subsection R315-264-143(e)(10). Failure to pay the premium,
without substitution of alternate financial assurance as specified in Section
R315-264-143, shall constitute a significant violation of these regulations,
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 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
full force and effect in the event that on or before the date of expiration:
(i) The Director deems the facility
abandoned; or
(ii) The permit is
terminated or revoked or a new permit is denied; 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) Whenever the
current closure 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 closure cost estimate and submit evidence of such increase to
the Director , or obtain other financial assurance as specified in Section
R315-264-143 to cover the increase. Whenever the current closure cost estimate
decreases, the face amount may be reduced to the amount of the current closure
cost estimate following written approval by the Director .
(10) The Director shall give written consent
to the owner or operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes
alternate financial assurance as specified in Section R315-264-143; or
(ii) The Director releases the
owner or operator from the requirements of Section R315-264-143 in accordance
with Subsection R315-264-143(i).
(f) Financial test and corporate guarantee
for closure.
(1) An owner or operator may
satisfy the requirements of Section R315-264-143 by demonstrating that he
passes a financial test as specified in Subsection R315-264-143(f). To pass
this test the owner or operator shall meet the criteria of either Subsections
R315-264-143(f)(1)(i) or (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 closure and post-closure
cost estimates and the current plugging and abandonment cost estimates; and
(C) Tangible net worth of at least
>0 million; and
(D) Assets
located in the United States amounting to at least 90 percent of total assets
or at least six times the sum of the current closure and post-closure cost
estimates and the current plugging and abandonment cost estimates.
(ii) The owner or operator shall
have:
(A) A current rating for his 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 closure and post-closure 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 percent of total assets or at least
six times the sum of the current closure and post-closure cost estimates and
the current plugging and abandonment cost estimates.
(2) The phrase "current closure
and post-closure cost estimates" as used in Subsection R315-264-143(f)(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
R315-264-151(f).
The phrase "current plugging and abandonment cost estimates" as used in
Subsection R315-264-143(f)(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 he meets this test ,
the owner or operator shall submit the following items to the Director :
(i) A letter signed by the owner's or
operator's chief financial officer and worded as specified in Subsection
R315-264-151(f);
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) A special report from the
owner's or operator's independent certified public accountant to the owner or
operator stating that:
(A) He has compared
the data which the letter from the chief financial officer specifies as having
been derived from the independently audited , year -end financial statements for
the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that
procedure, no matters came to his attention which caused him to believe that
the specified data should be adjusted.
(4) An owner or operator of a new facility
shall submit the items specified in Subsection R315-264-143(f)(3) to the
Director at least 60 days before the date on which hazardous waste is first
received for treatment, storage, or disposal.
(5) After the initial submission of items
specified in Subsection R315-264-143(f)(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 all three items
specified in Subsection R315-264-143(f)(3).
(6) If the owner or operator no longer meets
the requirements of Subsection R315-264-143(f)(1), he shall send notice to the
Director of intent to establish alternate financial assurance as specified in
Section R315-264-143. The notice shall be sent by certified mail within 90 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. The owner or
operator shall provide the alternate financial assurance within 120 days after
the end of such fiscal year .
(7)
The Director may, based on a reasonable belief that the owner or operator may
no longer meet the requirements of Subsection R315-264-143(f)(1), require
reports of financial condition at any time from the owner or operator in
addition to those specified in Subsection R315-264-143(f)(3). If the Director
finds, on the basis of such reports or other information, that the owner or
operator no longer meets the requirements of Subsection R315-264-143(f)(1), the
owner or operator shall provide alternate financial assurance as specified in
Section R315-264-143 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 his report on examination of the
owner's or operator's financial statements, see Subsection
R315-264-143(f)(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 R315-264-143 within 30 days after
notification of the disallowance.
(9) The owner or operator is no longer
required to submit the items specified in Subsection R315-264-143(f)(3) when:
(i) An owner or operator substitutes
alternate financial assurance as specified in Section R315-264-143; or
(ii) The Director releases the
owner or operator from the requirements of Section R315-264-143 in accordance
with Subsection R315-264-143(i).
(10) An owner or operator may meet the
requirements of Section R315-264-143 by obtaining 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 Subsection R315-264-143(f)(1) through (8) and shall comply with
the terms of the guarantee. The wording of the guarantee shall be identical to
the wording specified in Subsection
R315-264-151(h).
The certified copy of the guarantee shall accompany the items sent to the
Director as specified in Subsection R315-264-143(f)(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) If the owner or operator fails to perform
final closure of a facility covered by the corporate guarantee in accordance
with the closure plan and other permit requirements whenever required to do so,
the guarantor shall do so or establish a trust fund as specified in Subsection
R315-264-143(a) in the name of the owner or operator.
(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 R315-264-143 and obtain the written approval of such 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 such alternative
financial assurance in the name of the owner or operator.
(g) Use of multiple financial
mechanisms. An owner or operator may satisfy the requirements of Section
R315-264-143 by establishing more than one financial mechanism per facility .
These mechanisms are limited to trust funds, surety bonds guaranteeing payment
into a trust fund, letters of credit, and insurance. The mechanisms shall be as
specified in Subsections R315-264-143(a), (b), (d), and (e), respectively,
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 closure cost estimate . If an owner or operator uses a trust fund
in combination with a surety bond or a letter of credit, he 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 of the mechanisms to provide for closure of the facility .
(h) Use of a financial mechanism for multiple
facilities. An owner or operator may use a financial assurance mechanism
specified in Section R315-264-143 to meet the requirements of Section
R315-264-143 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, name, address, and the amount of funds for closure
assured by the mechanism. If the facilities covered by the mechanism are in
more than one State, identical evidence of financial assurance shall be
submitted to and maintained with the State Agency regulating hazardous waste in
states other than Utah or with the appropriate Regional Administrator if the
facility is located in an unauthorized State. The amount of funds available
through the mechanism shall be no less than the sum of funds that would be
available if a separate mechanism had been established and maintained for each
facility . In directing funds available through the mechanism for closure of 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.
(i) Release of the owner or operator from the
requirements of Section R315-264-143. Within 60 days after receiving
certifications from the owner or operator and a qualified Professional Engineer
that final closure has been completed in accordance with the approved closure
plan , the Director shall notify the owner or operator in writing that he is no
longer required by Section R315-264-143 to maintain financial assurance for
final closure of the facility , unless the Director has reason to believe that
final closure has not been in accordance with the approved closure plan . The
Director shall provide the owner or operator a detailed written statement of
any such reason to believe that closure has not been in accordance with the
approved closure plan .
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.