329 IAC 3.1-14-5 Corrective action or closure trust fund option

Sec. 5. (a) An owner or operator may satisfy the requirements of section 4 of this rule by establishing a corrective action or closure trust fund that conforms to the requirements of this section and submitting an originally signed duplicate of the trust agreement to the commissioner. 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. (b) The wording of the trust agreement must be identical to the wording specified in section 26(a) of this rule, and the trust agreement must be accompanied by a formal certification of acknowledgment in accordance with section 26(b) of this rule. Schedule A of the trust agreement must be updated within sixty (60) days after a change in the amount of the current corrective action or closure cost estimate covered by the agreement. (c) For corrective action financial assurance, the owner or operator shall deposit the full amount of the current corrective action cost estimate into the trust fund at the time a trust fund for corrective action financial assurance is established. (d) For closure financial assurance, payments into the trust fund must be made annually by the owner or operator over the twenty (20) years beginning with July 1, 1982, or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereinafter referred to as the pay-in-period. The payments in the closure trust fund must be made as follows: (1) The first payment must be made by July 1, 1982, except as provided in subsection (f). The first payment must be at least equal to the current closure cost estimate, except as provided in section 10 of this rule, divided by the number of years in the pay-in-period. (2) Subsequent payments must be made no later than thirty (30) days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by the following 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. (e) The owner or operator may accelerate payments into the trust fund or the owner or operator may deposit the full amount of the current closure cost estimate at the time the fund is established. The owner or operator shall maintain the value of the fund at no less than the value that the fund would have if annual payments were made in accordance with subsection (d). (f) If the owner or operator establishes a closure trust fund after having used one (1) or more alternate mechanisms specified in this section and sections 6 through 9 of this rule, the first payment must be in at least the amount that the fund would contain if the trust fund was established initially and annual payments made in accordance with subsection (d). (g) After the pay-in-period is completed or the trust fund is fully funded, whenever the current corrective action or 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 sixty (60) days after the change in the cost estimate, shall either: (1) deposit an amount into the fund so that its value after this deposit at least equals the amount of the current corrective action or closure cost estimate; or (2) obtain other financial assurance in accordance with this section and sections 6 through 9 of this rule to cover the difference. (h) If the value of the trust fund is greater than the total amount of the current corrective action or closure cost estimate, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current corrective action or closure cost estimate. (i) If an owner or operator substitutes other financial assurance in accordance with this section and sections 6 through 9 of this rule for all or part of the trust fund, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current corrective action or closure cost estimate covered by the trust fund. (j) Within sixty (60) days after receiving a request from the owner or operator for release of funds in accordance with subsection (h) or (i), the commissioner shall instruct the trustee to release to the owner or operator the funds the commissioner specifies in writing. (k) After beginning corrective action, partial closure, or final closure, an owner or operator or another person authorized to conduct corrective action, partial closure, or final closure may request reimbursement for corrective action, partial closure, or final closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursement 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. No later than sixty (60) days after receiving bills for corrective action, partial closure, or final closure activities, the commissioner shall instruct the trustee to make reimbursements in the amounts the commissioner specifies in writing if the commissioner determines that the corrective action, partial closure, or final closure expenditures are in accordance with the approved corrective action or closure plan or otherwise justified. If the commissioner has reason to believe that the maximum cost of corrective action or closure over the remaining life of the facility will be significantly greater than the value of the trust fund, the commissioner may withhold reimbursements of the amounts the commissioner deems prudent until it is determined, in accordance with section 12 of this rule, that the owner or operator is no longer required to maintain financial assurance for corrective action or final closure of the facility. If the commissioner does not instruct the trustee to make reimbursements, the commissioner shall provide to the owner or operator a detailed written statement of reasons. (l) The commissioner shall agree to termination of the trust when: (1) the owner or operator substitutes alternate financial assurance in accordance with section 4 of this rule, this section, and sections 6 through 11 of this rule; or (2) the commissioner releases the owner or operator from the requirements of section 4 of this rule, this section, and sections 6 through 11 of this rule in accordance with section 12 of this rule.