329 IAC 3.1-14-18 - Post-closure insurance option
Authority: IC 13-14-8; IC 13-22-2; IC 13-22-8-1; IC 13-22-9-7
Affected: IC 13-22
Sec. 18.
(a) An
owner or operator may satisfy the requirements of section 14 of this rule by
obtaining post-closure insurance that conforms to the requirements of this
section and submitting a certificate of such insurance to the commissioner. The
owner or operator shall submit the certificate of insurance to the commissioner
or establish other financial assurance as specified in sections 15 through 17
of this rule, this section, and section 19 of this rule. 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 (1) or more
states.
(b) The wording of the
certificate of insurance must be identical to the wording specified in section
30 of this rule.
(c) The
post-closure insurance policy must be issued for a face amount at least equal
to the current post-closure cost estimate except as provided in section 20 of
this rule. As used in this section, "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.
(d) The post-closure insurance policy must
guarantee that funds will be available to provide post-closure care of the
facility whenever the post-closure period begins. The policy also must
guarantee that once post-closure care begins, 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 commissioner, to such party or parties as the
commissioner specifies.
(e) An
owner or operator or any other person authorized to perform post-closure care
may request reimbursement for postclosure care expenditures by submitting
itemized bills to the commissioner. Within sixty (60) days after receiving
bills for postclosure care activities, the commissioner shall instruct the
insurer to make reimbursements in those amounts as the commissioner specifies
in writing if the commissioner determines that the post-closure expenditures
are in accordance with the approved postclosure plan or otherwise justified. If
the commissioner does not instruct the insurer to make such reimbursements, the
commissioner shall provide a detailed written statement of reasons.
(f) The owner or operator shall maintain the
policy in full force and effect until the commissioner consents to termination
of the policy by the owner or operator as specified in subsection (k). Failure
to pay the premium, without substitution of alternate financial assurance as
specified in sections 14 through 17 of this rule, this section, and sections 19
through 21 of this rule, constitutes a major violation of this rule warranting
such remedy as the commissioner deems necessary and is authorized to make. Such
violation is deemed to begin upon receipt by the commissioner of a notice of
future cancellation, termination, or failure to renew due to nonpayment of the
premium rather than upon the date of expiration.
(g) 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.
(h)
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
commissioner. Cancellation, termination, or failure to renew may not occur,
however, during the one hundred twenty (120) days beginning with the date of
receipt of the notice by both the commissioner and the owner or operator as
evidenced by the return receipts. Cancellation, termination, or failure to
renew may not occur and the policy must remain in full force and effect in the
event that on or before the date of expiration:
(1) the commissioner deems the facility
abandoned;
(2) the interim status
is terminated or revoked;
(3)
closure is ordered by the commissioner, the U.S. EPA, or court of competent
jurisdiction;
(4) the owner or
operator is named as debtor in a voluntary or involuntary bankruptcy proceeding
under
11
U.S.C. 101 et seq., October 1, 1979;
or
(5) the premium due is
paid.
(i) 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 sixty (60) days after the increase, shall either:
(1) 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 commissioner; or
(2) obtain other financial assurance as
specified in sections 15 through 17 of this rule, this section, and section 19
of this rule 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 commissioner.
(j) Commencing on the date that liability to
make payments pursuant to the policy accrues, the insurer shall 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 eighty-five percent (85%) of the most recent
investment rate or of the equivalent coupon-issue yield announced by the U.S.
Department of the Treasury for twenty-six (26) week Treasury
securities.
(k) The commissioner
shall give written consent to the owner or operator that the owner or operator
may terminate the insurance policy when:
(1)
the owner or operator substitutes alternate financial assurance as specified in
sections 15 through 17 of this rule, this section, and section 19 of this rule;
or
(2) the commissioner releases
the owner or operator from the requirements of section 14 of this rule in
accordance with section 22 of this rule.
Notes
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