Financial Assurance for Post-Closure Monitoring and Maintenance

Section 725 Section 725.245  Financial Assurance for Post-Closure Monitoring and Maintenance An owner or operator of a facility with a hazardous waste disposal unit must establish financial assurance for post-closure care of the disposal units.  The owner or operator must choose from the following options: a)         Post-Closure Trust Fund 1)         An owner or operator may satisfy the requirements of this Section by establishing a post-closure trust fund that conforms to the requirements of this subsection and submitting an original, signed duplicate of the trust agreement to the Agency.  The trustee must 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 must be as specified in 35 Ill. Adm. Code 724.251 and the trust agreement must be accompanied by a formal certification of acknowledgment (as specified in 35 Ill. Adm. Code 724.251).  Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current post-closure cost estimate covered by the agreement. 3)         Payments into the trust fund must be made annually by the owner or operator over the remaining operating life of the facility as estimated in the closure plan; this period is hereafter referred to as the "pay-in period". The payments into the post-closure trust fund must be made as follows: A)        The first payment must be at least equal to the current post-closure cost estimate, except as provided in subsection (f), divided by the number of years in the pay-in period. B)        Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula: Next Payment = ( CE-CV ) Y Where: CE = the current closure cost estimate CV = the current value of the trust fund Y = the number of years remaining in the pay-in period 4)         The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current post-closure 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 subsection (a)(3). 5)         If the owner or operator establishes a post-closure trust fund after having used one or more alternate mechanisms specified in this Section, the owner or operator's first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made as specified in subsection (a)(3). 6)         After the pay-in period is completed, whenever the current post-closure cost estimate changes during the operating life of the facility, 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 60 days after the change in the 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 post-closure cost estimate, or obtain other financial assurance as specified in this Section to cover the difference. 7)         During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current post-closure cost estimate, the owner or operator may submit a written request to the Agency for release of the amount in excess of the current post-closure cost estimate. 8)         If an owner or operator substitutes other financial assurance as specified in this Section for all or part of the trust fund, owner or operator may submit a written request to the Agency for release of the amount in excess of the current post-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 (a)(7) or (a)(8), the Agency must instruct the trustee to release to the owner or operator such funds as the Agency specifies in writing. 10)         During the period of post-closure care, the Agency must approve a release of funds if the owner or operator demonstrates to the Agency that the value of the trust fund exceeds the remaining cost of post-closure care. 11)         An owner or operator or any other person authorized to perform post-closure care may request reimbursement for post-closure care expenditures by submitting itemized bills to the Agency.  Within 60 days after receiving bills for post-closure activities, the Agency must instruct the trustee to make reimbursement in those amounts as the Agency specifies in writing if the Agency determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified. If the Agency does not instruct the trustee to make such reimbursements, the Agency must provide the owner or operator with a detailed written statement of reasons. 12)         The Agency must agree to termination of a trust when either of the following occurs: A)        An owner or operator substitutes alternate financial assurance, as specified in this Section; or B)        The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (h). b)         Surety Bond Guaranteeing Payment into a Post-Closure Trust Fund 1)         An owner or operator may satisfy the requirements of this Section by obtaining a surety bond that conforms to the requirements of this subsection (b) and submitting the bond to the Agency.  The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. Department of the Treasury. BOARD NOTE:  The U.S. Department of the Treasury updates Circular 570, "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies", on an annual basis pursuant to 31 CFR 223.16. Circular 570 is available on the Internet from the following website:  http://www.fms.treas.gov/c570/. 2)         The wording of the surety bond must be as specified in 35 Ill. Adm. Code 724.251. 3)         The owner or operator that uses a surety bond to satisfy the requirements of this Section must also establish a standby trust fund.  Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the Agency.  This standby trust fund must meet the requirements specified in subsection (a), except as follows: A)        An original, signed duplicate of the trust agreement must be submitted to the Agency with the surety bond; and B)        Until the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations: i)          Payments into the trust fund, as specified in subsection (a); ii)         Updating of Schedule A of the trust agreement (as specified in 35 Ill. Adm. Code 724.251) to show current post-closure cost estimates; iii)        Annual valuations, as required by the trust agreement; and iv)        Notices of nonpayment, as required by the trust agreement. 4)         The bond must guarantee that the owner or operator will perform the following acts: A)        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 B)        Fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin closure is issued by the Board or a court of competent jurisdiction; or C)        Provide alternate financial assurance, as specified in this Section, and obtain the Agency's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Agency of a 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. 6)         The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate, except as provided in subsection (f). 7)         Whenever the current post-closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Agency or obtain other financial assurance as specified in this Section to cover the increase.  Whenever the current post-closure cost estimate decreases, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. 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 Agency.  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 Agency, as evidenced by the return receipts. 9)         The owner or operator may cancel the bond if the Agency has given prior written consent based on its receipt of evidence of alternate financial assurance as specified in this Section. c)         Post-Closure Letter of Credit 1)         An owner or operator may satisfy the requirements of this Section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subsection (c) and submitting the letter to the Agency.  The issuing institution must 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 must be as specified in 35 Ill. Adm. Code 724.251. 3)         An owner or operator that uses a letter of credit to satisfy the requirements of this Section must also establish a standby trust fund.  Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Agency must be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Agency.  This standby trust fund must meet the requirements of the trust fund specified in subsection (a), except as follows: A)        An original, signed duplicate of the trust agreement must be submitted to the Agency with the letter of credit; and B)        Unless the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations: i)          Payments into the trust fund, as specified in subsection (a); ii)         Updating of Schedule A of the trust agreement (as specified in 35 Ill. Adm. Code 724.151) to show current post-closure cost estimates; iii)        Annual valuations, as required by the trust agreement; and iv)        Notices of nonpayment, as required by the trust agreement. 4)         The letter of credit must 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 USEPA identification number, name, and address of the facility, and the amount of funds assured for post-closure care of the facility by the letter of credit. 5)         The letter of credit must be irrevocable and issued for a period of at least one year.  The letter of credit must provide that the expiration date will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the Agency 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 Agency have received the notice, as evidenced by the return receipts. 6)         The letter of credit must be issued in an amount at least equal to the current post-closure cost estimate, except as provided in subsection (f). 7)         Whenever the current post-closure cost estimate increases to an amount greater than the amount of the credit during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current post-closure cost estimate and submit evidence of such increase to the Agency, or obtain other financial assurance, as specified in this Section, to cover the increase.  Whenever the current cost estimate decreases during the operating life of the facility, the amount of the credit may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. 8)         During the period of post-closure care, the Agency must approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the Agency that the amount exceeds the remaining cost of post-closure care. 9)         Following a final judicial determination or Board order finding that the owner or operator has failed to perform post-closure care in accordance with the approved post-closure plan and other interim status requirements, the Agency may draw on the letter of credit. 10)         If the owner or operator does not establish alternate financial assurance, as specified in this Section, and obtain written approval of such alternate assurance from the Agency within 90 days after receipt by both the owner or operator and the Agency of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Agency must draw on the letter of credit.  The Agency may delay the drawing if the issuing institution grants an extension of the term of the credit.  During the last 30 days after any such extension the Agency must draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance, as specified in this Section, and obtain written approval of such assurance from the Agency. 11)         The Agency must return the letter of credit to the issuing institution for termination when either of the following occurs: A)        An owner or operator substitutes alternate financial assurance, as specified in this Section; or B)        The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (h). d)         Post-Closure Insurance 1)         An owner or operator may satisfy the requirements of this Section by obtaining post-closure insurance that conforms to the requirements of this subsection and submitting a certificate of such insurance to the Agency.  At a minimum, the insurer must 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 must be as specified in 35 Ill. Adm. Code 724.251. 3)         The post-closure insurance policy must be issued for a face amount at least equal to the current post-closure estimate, except as provided in subsection (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 will be lowered by the amount of the payments. 4)         The post-closure insurance policy must guarantee that funds will be available to provide post-closure care of facility whenever the post-closure period begins. The policy must also guarantee that, once post-closure care begins, the insurer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the Agency, to such party or parties as the Agency specifies. 5)         An owner or operator or any other person authorized to perform post-closure care may request reimbursement for post-closure care expenditures by submitting itemized bills to the Agency.  Within 60 days after receiving bills for post-closure activities, the Agency must instruct the insurer to make reimbursement in such amounts as the Agency specifies in writing, if the Agency determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified.  If the Agency does not instruct the insurer to make such reimbursements, the Agency must provide the owner or operator with a detailed written statement of reasons. 6)         The owner or operator must maintain the policy in full force and effect until the Agency consents to termination of the policy by the owner or operator, as specified in subsection (d)(11).  Failure to pay the premium, without substitution of alternate financial assurance, as specified in this Section, will constitute a significant violation of these regulations, warranting such remedy as the Board may impose pursuant to the Environmental Protection Act.  Such violation will be deemed to begin upon receipt by the Agency 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 must 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 must 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 must, 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 Agency.  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 Agency and the owner or operator, as evidenced by the return receipts.  Cancellation, termination, or failure to renew may not occur, and the policy will remain in full force and effect in the event that, on or before the date of expiration, one of the following occurs: A)        The Agency deems the facility abandoned; B)        Interim status is terminated or revoked; C)        Closure is ordered by the Board or a court of competent jurisdiction; D)        The owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USC (Bankruptcy); or E)        The premium due is paid. 9)         Whenever the current post-closure cost estimate increases to an amount greater than the face amount of the policy during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Agency, or obtain other financial assurance, as specified in this Section, to cover the increase.  Whenever the current post-closure cost estimate decreases during the operating life of the facility, the face amount may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. 10)         Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer must thereafter annually increase the face amount of the policy.  Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities. 11)         The Agency must give written consent to the owner or operator that the owner or operator may terminate the insurance policy when either of the following occurs: A)        An owner or operator substitutes alternate financial assurance, as specified in this Section; or B)        The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (h). e)         Financial Test and Corporate Guarantee for Post-Closure Care 1)         An owner or operator may satisfy the requirements of this Section by demonstrating that the owner or operator passes a financial test, as specified in this subsection (e).  To pass this test the owner or operator must meet the criteria of either subsection (e)(1)(A) or (e)(1)(B): A)        The owner or operator must have each of the following: i)          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; ii)         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; iii)        Tangible new worth of at least $10 million; and iv)        Assets 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 plugging and abandonment cost estimates. B)        The owner or operator must have each of the following: i)          A current rating for its 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; ii)         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; iii)        Tangible net worth of at least $10 million; and iv)        Assets located in the United States amounting to at least 90 percent of its 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 (e)(1), refers to the cost estimates required to be shown in subsections 1 through 4 of the letter from the owner's or operator's chief financial officer (see 35 Ill. Adm. Code 724.251).  The phrases "current plugging and abandonment cost estimates", as used in subsection (e)(1), refers to the cost estimates required to be shown in subsections 1 through 4 of the letter from the owner's or operator's chief financial officer (see 35 Ill. Adm. Code 704.240). 3)         To demonstrate that it meets this test, the owner or operator must submit each of the following items to the Agency: A)        A letter signed by the owner's or operator's chief financial officer and worded as specified in 35 Ill. Adm. Code 724.251; B)        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 C)        A special report from the owner's or operator's independent certified public accountant to the owner or operator stating both of the following: i)          That the accountant has compared the data that 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 ii)         In connection with that procedure, that no matters came to the accountant's attention that caused the accountant to believe that the specified data should be adjusted. 4)         This subsection (e)(4) corresponds with 40 CFR 265.143(e)(4), a federal provision relating to an extension of the time to file the proofs of financial assurance required by this subsection (e) granted by USEPA.  This statement maintains structural consistency with the corresponding federal regulations. 5)         After the initial submission of items specified in subsection (e)(3), the owner or operator must send updated information to the Agency within 90 days after the close of each succeeding fiscal year.  This information must consist of all three items specified in subsection (e)(3). 6)         If the owner or operator no longer meets the requirements of subsection (e)(1), the owner or operator must send notice to the Agency of intent to establish alternate financial assurance, as specified in this Section.  The notice must 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 must provide the alternate financial assurance within 120 days after the end of such fiscal year. 7)         The Agency may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (e)(1), require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (e)(3).  If the Agency finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (e)(1), the owner or operator must provide alternate financial assurance, as specified in this Section, within 30 days after notification of such a finding. 8)         The Agency may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the accountant's report on examination of the owner's or operator's financial statements (see subsection (e)(3)(B)).  An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Agency must evaluate other qualifications on an individual basis.  The owner or operator must provide alternate financial assurance, as specified in this Section, within 30 days after notification of the disallowance. 9)         During the period of post-closure care, the Agency must approve a decrease in the current post-closure cost estimate for which this test demonstrates financial assurance if the owner or operator demonstrates to the Agency that the amount of the cost estimate exceeds the remaining cost of post-closure care. 10)         The owner or operator is no longer required to submit the items specified in subsection (e)(3) when either of the following occurs: A)        An owner or operator substitutes alternate financial assurance, as specified in this Section; or B)        The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (h). 11)         An owner or operator may meet the requirements of this Section by obtaining a written guarantee, hereafter referred to as "corporate guarantee".  The guarantor must 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 must meet the requirements for owners or operators in subsections (e)(1) through (e)(9), and must comply with the terms of the corporate guarantee.  The wording of the corporate guarantee must be identical to the wording specified in 35 Ill. Adm. Code 724.251. The corporate guarantee must accompany the items sent to the Agency as specified in subsection (e)(3).  One of these items must 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 must 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 must describe this substantial business relationship" and the value received in consideration of the guarantee.  The terms of the corporate guarantee must provide as follows: A)        That, if the owner or operator fails to perform post-closure care of a facility covered by the corporate guarantee in accordance with the post-closure plan and other interim status requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in subsection (a), in the name of the owner or operator. B)        That the corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Agency.  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 Agency, as evidenced by the return receipts. C)        That, if the owner or operator fails to provide alternate financial assurance, as specified in this Section, and obtain the written approval of such alternate assurance from the Agency within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such 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 this Section 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 must be as specified in subsections (a) through (d), respectively, except that it is the combination of mechanisms, rather than the single mechanism, that must provide financial assurance for an amount at least equal to the current post-closure cost estimate.  If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, it 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 Agency may use any or all of the mechanisms to provide for post-closure care of the facility. g)         Use of a Financial Mechanism for Multiple Facilities. An owner or operator may use a financial assurance mechanism specified in this Section to meet the requirements of this Section for more than one facility. Evidence of financial assurance submitted to the Agency must include a list showing, for each facility, the USEPA Identification Number, name, address, and the amount of funds for post-closure care assured by the mechanism.  The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility.  The amount of funds available to the Agency must be sufficient to provide post-closure care for all of the owner or operator's facilities.  In directing funds available through the mechanism for post-closure care of any of the facilities covered by the mechanism, the Agency 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)         Release of the Owner or Operator from the Requirements of This Section.  Within 60 days after receiving certifications from the owner or operator and a qualified Professional Engineer that the post-closure care period has been completed in accordance with the approved post-closure plan, the Agency must notify the owner or operator in writing that the owner or operator is no longer required by this Section to maintain financial assurance for post-closure care of that unit, unless the Agency determines that post-closure care has not been in accordance with the approved plan.  The Agency must provide the owner or operator a detailed written statement of any such determination that post-closure care has not been in accordance with the approved post-closure plan. i)          Appeal.  The following Agency actions are deemed to be permit modifications or refusals to modify for purposes of appeal to the Board (35 Ill. Adm. Code 702.184(e)(3)): 1)         An increase in, or a refusal to decrease the amount of, a bond, letter of credit, or insurance; or 2)         Requiring alternate assurance upon a finding that an owner or operator or parent corporation no longer meets a financial test.