Trust Fund

Section 848 Section 848.410  Trust Fund a)         An owner or operator may satisfy the requirements of this Subpart by establishing a trust fund that conforms to the requirements of this Section and submitting an originally signed duplicate of the trust agreement to the Agency. b)         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. c)         The trust agreement must be irrevocable, must be on forms prescribed by the Agency, must be accompanied by a formal certification of acknowledgment on a form prescribed by the Agency, and must contain provisions addressing, at a minimum, the establishment, management, and termination of the trust and a schedule listing, at a minimum, the sites covered by the trust, the current approved removal cost for each of those sites, and prohibitions against third party access to the trust funds other than as provided in the trust agreement. The schedule required under this subsection (c) must be in the form prescribed by the Agency and must be updated within 60 days after a change in the amount of the current approved removal cost for any site covered by the trust. d)         Payments into the Trust 1)         The owner or operator must make a payment into the trust fund each year during the pay-in period.  However, after expiration of the pay-in period, neither the owner nor the operator may use a pay-in period to fund the trust and must instead make a lump sum payment to further fund the trust. 2)         The pay-in period is three years and commences on the date any of the sites covered by the trust agreement first receives used or waste tires. 3)         Annual payments are determined by the following formula: Annual payment = (CE-CV)/Y where: CE = Current total approved removal cost estimate for all sites covered by the trust agreement CV = Current value of the trust fund Y = Number of years remaining in the pay in period. 4)         The owner or operator must make the first annual payment before used or waste tires are received at a site covered by the trust agreement.  Before receiving used tires at a site covered by the trust agreement, the owner or operator must submit to the Agency a receipt from the trustee for the first annual payment. 5)         Subsequent annual payments must be made no later than 30 days after each anniversary of the first payment. 6)         The owner or operator may either accelerate payments into the trust fund, or may deposit the full amount of the current approved removal cost estimate at the time the fund is established. 7)         The owner or operator must maintain the value of the fund at no less than the value the fund would have if annual payments were made as specified in subsection (d)(3). 8)         If the owner or operator establishes a trust fund after having used one or more alternative mechanisms, the first payment must be in at least the amount the fund would contain if the trust fund were established initially and payments made as provided in subsection (d)(3). e)         The trustee must evaluate the trust fund annually as of the anniversary of the day the trust was created or on such other date as may be provided in the agreement. Within 30 days after the evaluation date each year, the trustee must furnish the owner or operator and the Agency with a statement confirming the value of the trust fund within 30 days after the evaluation date. The failure of the owner or operator to object in writing to the trustee within 90 days after the statement has been furnished to the owner or operator and the Agency constitutes a conclusively binding assent by the owner or operator, barring the owner or operator from asserting any claim or liability against the trustee with respect to matters disclosed in the statement. f)         After the pay-in period is completed, whenever the removal cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator must, within 60 days after the change in the removal cost estimate, either deposit an amount into the fund so that its value after this deposit at least equals the amount of the removal cost estimate, or obtain other financial assurance as specified in this Subpart to cover the difference. g)         Release of excess funds: 1)         If the value of the trust fund is greater than the total amount of the current approved removal cost estimate, the owner or operator may submit a written request to the Agency for a release of the amount in excess of the current approved removal cost estimate. 2)         If an owner or operator substitutes other financial assurance as specified in this Subpart for all or part of the trust fund, he or she may submit a written request to the Agency for release of the amount in excess of the current approved removal cost estimate covered by the trust fund. 3)         As soon as practicable after receiving a request from the owner or operator for a release of funds pursuant to this subsection (g) but not more than 120 days following the Agency's receipt of the request, the Agency must instruct the trustee to release to the owner or operator such funds as the Agency specifies in writing to be in excess of the current approved removal cost estimate. h)         Reimbursement for removal expenses: 1)         After initiating removal, an owner or operator, or any other person authorized to perform removal, may request reimbursement for partial or final removal expenditures, by submitting itemized bills to the Agency.  The owner or operator may request reimbursements for partial closure only if sufficient funds remain in the trust fund to cover the costs of removal. 2)         As soon as practicable after receiving the itemized bills for partial or final removal activities, but no more than 120 days following the Agency's receipt of the itemized bills, the Agency must determine whether the expenditures are in accordance with the removal plan.  If the Agency determines, based on the information available to it, that the remaining cost of removal will be less than the value of the trust fund, the Agency must instruct the trustee to make reimbursement in such amounts as the Agency specifies in writing as expenditures in accordance with the removal plan. 3)         If the Agency determines, based on such information as is available to it, that the remaining cost of removal will be greater than the value of the trust fund, it must withhold reimbursement of such amounts as it determines are necessary to preserve the trust corpus in order to accomplish removal until it determines that the owner or operator is no longer required to maintain financial assurance for removal.  In the event the fund is inadequate to pay all claims after removal is completed, the Agency must pay claims according to the following priorities: A)        Persons with whom the Agency has contracted and authorized to perform removal activities (first priority); B)        Persons who have completed removal activities authorized by the Agency (second priority); C)        Persons who have completed work which furthered the removal (third priority); D)        The owner or operator and related business entities (last priority).