An owner or operator of each facility shall establish financial
assurance for closure of the facility. The owner or operator shall choose from
among the following options:
(A)
Closure trust fund.
(1) An owner or operator
may satisfy the requirements of this rule by establishing a closure trust fund
which conforms to the requirements of
paragraphs
paragraph
(A)
to (A)(11)(b) of this rule and
submitting an originally signed duplicate of the trust agreement to the
director
by certified mail. An owner or
operator of a new facility shall send the originally signed duplicate of the
trust agreement to the director
by certified
mail at least sixty 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 paragraph (A)(1) of rule
3745-55-51 of the Administrative
Code and the trust agreement shall be accompanied by a formal certification of
acknowledgement. [For example, see paragraph (A)(2) of rule
3745-55-51 of the Administrative
Code.] "Schedule A" of the trust agreement shall be updated within sixty days
after a change in the amount of the current closure cost estimate covered by
the agreement.
(3) Payments to the
trust fund shall be made annually by the owner or operator over the term of the
initial hazardous waste 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:
(a) 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 (see rule
3745-55-42 of the Administrative
Code) except as provided in paragraph (G) of this rule, divided by the number
of years in the pay-in period. Subsequent payments shall be made no later than
thirty 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 current closure cost estimate, CV is the
current value of the trust fund, and Y is the number of years remaining in the
pay-in period.
(b) If an
owner or operator establishes a trust fund as specified in paragraph (A) of
this rule, and the value of that trust fund is less than the current closure
cost estimate when a permit is issued to 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 described in paragraph (A)(3) of this rule.
Payments shall continue to be made no later than thirty days after each
anniversary date of the first payment made pursuant to Chapters 3745-65 to
3745-69 and 3745-256 of the Administrative Code. The amount of each payment
must be determined by this formula:
Next payment = (CE - CV) / Y
Where CE is the current closure cost estimate, CV is the
current value of the trust fund, and Y is the number of years remaining in the
pay-in period.
(4)
The owner or operator may accelerate payments unto the trust fund or the owner
or operator may deposit the full amount of the current closure cost estimate at
the time the
trust fund is established. However,
the owner or operator shall maintain the value of the
trust fund at no less than the value the
trust fund would have if annual payments were
made as specified in paragraph (A)(3) of this rule.
(5) If the owner or operator establishes a
closure trust fund after having used one or more alternate mechanisms specified
in this rule or in rule
3745-66-43 of the Administrative
Code, the owner's or operator's first payment shall be in at least the amount
that the
trust fund would contain if the trust
fund were established initially and annual payments made according to paragraph
(A)(3) of this rule and paragraph (A) of rule
3745-66-43 of the Administrative
Code, 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
trust fund is less than the amount of the new
estimate, the owner or operator, within sixty days after the change in the cost
estimate,
either shall
either deposit an amount into the
trust fund so that the value of the
trust fund after this deposit at least equals the
amount of the current closure cost estimate, or obtain other financial
assurance as specified in this rule 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 this rule for all or part of the trust
fund, 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 covered by
the trust fund.
(9) Within sixty
days after receiving a request from the owner or operator for release of funds
as specified in paragraph (A)(7) or (A)(8) of this rule, the director will
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 reimbursement
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 the remaining operating life of the
facility. Within sixty days after receiving bills for partial or final closure
activities, the director will determine whether the partial or final closure
expenditures are in accordance with the approved closure plan or
are otherwise justified, and if so, the director
will instruct the trustee to make reimbursement in such amounts as the director
specifies in writing. If the director has reason to believe that the maximum
cost of closure over the remaining
operating life
of the facility will be significantly greater than the value of the trust fund,
the director may withhold reimbursement of such amounts as the director deems
prudent until the director determines, in accordance with paragraph (I) of this
rule, 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, the director will provide the owner or
operator with a detailed written statement of reasons.
(11) The director will agree to termination
of the trust when either:
(a) The owner or
operator substitutes alternate financial assurance as specified in this
rule.
(b) The director releases the
owner or operator from the requirements of this rule in accordance with
paragraph (I) of this rule.
(B) Surety bond guaranteeing payment into a
closure trust fund.
(1) An owner or operator
may satisfy the requirements of this rule by obtaining a surety bond which
conforms to the requirements of
paragraphs
paragraph
(B)
to (B)(9) of this rule and submitting
the bond to the director
by certified mail.
An owner or operator of a new facility shall submit the surety bond to the
director
by certified mail at least sixty
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
At a minimum, 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.
[Comment: "Circular 570" is published in the Federal Register
annually on July first; interim
. Interim changes in the circular are also published
in the Federal Register.]
(2) The wording of the surety bond shall be
identical to the wording specified in paragraph (B) of rule
3745-55-51 of the Administrative
Code.
(3) The owner or operator who
uses a surety bond to satisfy the requirements of this rule
also shall
also establish a standby trust fund by the time the
bond is obtained. 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 director. This standby trust fund shall
meet the requirements specified in paragraph (A) of this rule, except that:
(a) An originally signed duplicate of the
trust agreement shall be submitted to the director with the surety bond;
and
(b) Until the standby trust
fund is funded pursuant to this rule, the following are not required:
(i) Payments into the trust fund as specified
in paragraph (A) of this rule;
(ii)
Updating of "Schedule A" of the trust agreement [see paragraph (A) of rule
3745-55-51 of the Administrative
Code] to show current 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 shall guarantee that the owner
or operator will:
(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 fifteen days after an order to begin final
closure in accordance with rules
3745-55-10 to
3745-55-20 of the Administrative
Code is issued by the director, or by an Ohio court, or other court of
competent jurisdiction, or by a U.S. district court, or within fifteen days
after issuance of a notice or revocation of the permit by the director;
or
(c) Provide alternate financial
assurance as specified in this rule, and obtain the director's written approval
of the assurance provided, within ninety 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 will become liable on the bond obligation when
the owner or operator fails to perform as guaranteed by the bond.
Following
After a determination by the director 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 will perform final closure as guaranteed by the
bond, or will 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 (see
rule
3745-55-42 of the Administrative
Code) except as provided in paragraph (G) of this rule.
(7) Whenever the current closure cost
estimate increases to an amount greater than the penal sum, the owner or
operator, within sixty days after the increase,
either 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 shall obtain other financial assurance as
specified in this rule 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 one hundred twenty 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 the director's receipt
of evidence of alternate financial assurance as specified in this
rule.
(C) Surety bond
guaranteeing performance of closure.
(1) An
owner or operator may satisfy the requirements of this rule by obtaining a
surety bond which conforms to the requirements of
paragraphs
paragraph
(C)
to (C)(10) of this rule and submitting
the bond to the director
by certified mail.
An owner or operator of a new facility shall submit the bond to the director
by certified mail at least sixty 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
At a minimum, 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.
[Comment: "Circular 570" is published in the Federal Register
annually on July first; interim
. Interim changes in the circular are also published
in the Federal Register.]
(2) The wording of the surety bond shall be
identical to the wording specified in paragraph (C) of rule
3745-55-51 of the Administrative
Code.
(3) The owner or operator who
uses a surety bond to satisfy the requirements of this rule
also shall
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
director. This standby trust shall meet the requirements specified in paragraph
(A) of this rule, except that:
(a) An
originally signed duplicate of the trust agreement shall be submitted to the
director with the surety bond; and
(b) Unless the standby trust fund is funded
pursuant to this rule, the following are not required:
(i) Payments into the trust fund as specified
in paragraph (A) of this rule;
(ii)
Updating of "Schedule A" of the trust agreement [see paragraph (A) of rule
3745-55-51 of the Administrative
Code] to show current 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 shall guarantee that the owner
or operator will either:
(a) Perform final
closure in accordance with the closure plan and other requirements of the
permit for the facility whenever required to do so.
(b) Provide alternate financial assurance as
specified in this rule, and obtain the director's written approval of the
assurance provided, within ninety 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 will become liable on the bond obligation when
the owner or operator fails to perform as guaranteed by the bond.
Following
After a determination pursuant to Chapter 3734. of the
Revised Code or 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 will perform final closure as guaranteed by the bond or will 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 amount of the current closure cost estimate (see
rule
3745-55-42 of the Administrative
Code).
(7) Whenever the current
closure cost estimate increases to an amount greater than the amount of the
penal sum, the owner or operator, within sixty days after the increase,
either shall
either cause the penal sum of the bond 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 shall obtain other
financial assurance as specified in this rule. 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 one hundred twenty days beginning on the date of
receipt of the notice of cancellation by both the owner or operator and the
director, as evidenced by return receipts.
(9) The owner or operator may cancel the bond
if the director has given prior written consent. The director will provide such
written consent when either:
(a) An owner or
operator provides alternate financial assurance as specified in this
rule.
(b) The director releases the
owner or operator from the requirements of this rule in accordance with
paragraph (I) of this rule.
(10) The surety will 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 this rule in
accordance with paragraph (I) of this rule.
(D) Closure letter of credit.
(1) An owner or operator may satisfy the
requirements of this rule by obtaining an irrevocable standby letter of credit
which conforms to the requirements of
paragraphs
paragraph
(D)
to (D)(10)(b) of this rule and by
submitting the letter to the director
by certified
mail. An owner or operator of a new facility shall submit the letter
of credit to the director
by certified mail
at least sixty 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 paragraph (D)
of rule
3745-55-51 of the Administrative
Code.
(3) An owner or operator who
uses a letter of credit to satisfy the requirements of this rule
also 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 will be deposited by the issuing institution directly into the standby
trust fund in accordance with instruction from the director. This standby trust
fund shall meet the requirements of the trust fund specified in paragraph (A)
of this rule, except that:
(a) An originally
signed duplicate of the trust agreement shall be submitted to the director with
the letter of credit; and
(b)
Unless the standby trust fund is funded pursuant to this rule, the following
are not required:
(i) Payments into the trust
fund as specified in paragraph (A) of this rule;
(ii) Updating of "Schedule A" of the trust
agreement [see paragraph (A) of rule
3745-55-51 of the Administrative
Code] to show current closure 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 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 U.S. 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 one
year. The letter of credit shall provide that the expiration date will be
automatically extended for a period of at least one year unless, at least one
hundred twenty 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 one hundred twenty days will
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 paragraph (G) of this rule.
(7) Whenever the current closure cost
estimate increases to an amount greater than the amount of the credit, the
owner or operator, within sixty days after the increase,
either shall
either cause the amount of the credit to be
increased so that the amount of the credit at least equals the current closure
cost estimate and submit evidence of such increase to the director, or shall
obtain other financial assurance as specified in this rule to cover the
increase. Whenever the current closure cost estimate decreases, the amount of
the letter of credit may be reduced to the amount of the current closure cost
estimate
Following
after written approval by the director.
(8)
Following
After a
determination pursuant to Chapter 3734. of the Revised Code or Section 3008 of
the 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 this rule and obtain
written approval of such alternate assurance from the director within ninety
days after the receipt by both the owner or operator and the director of a
notice from the issuing institution that the issuing institution
has decided not to extend the letter of
credit beyond the current expiration date, the director will 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 thirty days of any such
extension
, the director will draw on the letter
of credit if the owner or operator has failed to provide alternate financial
assurance as specified in this rule and obtain written approval of such
assurance from the director.
(10)
The director will return the letter of credit to the issuing institution for
termination when either:
(a) The owner or
operator substitutes alternate financial assurance as specified in this
rule
.
;
or
(b) The director releases
the owner or operator from the requirements of this rule in accordance with
paragraph (I) of this rule.
(E) Closure insurance.
(1) An owner or operator may satisfy the
requirements of this rule by obtaining closure insurance which conforms to the
requirements of
paragraphs
paragraph (E)
to
(E)(10)(b) of this rule 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 sixty 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
paragraph (E) of rule
3745-55-51 of the Administrative
Code.
(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 paragraph (G) of this rule. 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 closure insurance
policy shall guarantee that funds will be available to close the facility
whenever final closure occurs. The policy
also
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 reimbursement for closure expenditures by submitting itemized bills to
the director. The owner or operator may request reimbursement for partial
closure only if the remaining value of the policy is sufficient to cover the
maximum costs of closing the facility over the remaining operating life of the
facility. Within sixty days after receiving bills for closure activities, the
director will determine whether the partial or final closure expenditures are
in accordance with the approved closure plan or otherwise justified, and if so,
the director will instruct the insurer to make reimbursement in such amounts as
the director specifies in writing. If the director has reason to believe that
the maximum cost of closure over the remaining
operating life of the facility will be significantly
greater than the face amount of the policy, the director may withhold
reimbursement of such amounts as the director deems prudent until the director
determines, in accordance with paragraph (I) of this rule, 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, the director will 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 paragraph (E)(10) of this
rule. Failure to pay the premium, without substitution of alternate financial
assurance as specified in this rule, will constitute a significant violation,
warranting such remedy as the director deems necessary. Such violation will 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
At a minimum, 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 one hundred twenty 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 will remain in full force and effect in the
event that on or before the date of expiration:
(a) The director deems the facility
abandoned; or
(b) The permit is
terminated or revoked or a new permit is denied; or
(c) Closure is ordered by the director or a
U.S. district court or other court of competent jurisdiction; or
(d) The owner or operator is named as debtor
in a voluntary or involuntary proceeding under Title 11 (bankruptcy), U.S.
Code; or
(e) 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 sixty days after the
increase,
either 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 shall obtain other financial assurance as
specified in this rule 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
after written approval by the director.
(10) The director will give written consent
to the owner or operator that the owner or operator may terminate the insurance
policy when either:
(a) An owner or operator
substitutes alternate financial assurance as specified in this rule.
(b) The director releases the owner or
operator from the requirements of this rule in accordance with paragraph (I) of
this rule.
(F)
Financial test and corporate guarantee for closure.
(1) An owner or operator may satisfy the
requirements of this rule by demonstrating that the owner or operator passes a
financial test as specified in
paragraphs
paragraph
(F)
to (F)(10)(c) of this rule. To pass
this test, the owner or operator shall meet the criteria of either paragraph
(F)(1)(a) or (F)(1)(b) of this rule.
(a) The
owner or operator shall have:
(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; and
(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;
and
(iii) Tangible net worth of at
least ten million dollars: and
(iv)
Assets located in the United States amounting to at least ninety per cent 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.
(b) The owner
or operator shall have:
(i) A current
ratting
rating
for the owner's or operator's 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
(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;
and
(iii) Tangible net worth of at
least ten million dollars; and
(iv)
Assets located in the United States amounting to at least ninety per cent of
the owner's or operator's 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
paragraphs
paragraph
(F)(1)
to (F)(1)(b)(iv) of this rule refers
to the cost estimates required to be shown in paragraphs one through four of
the letter from the owner's or operator's chief financial officer [paragraph
(F) of rule
3745-55-51 of the Administrative
Code]. The phrase "current plugging and abandonment cost estimates" as used in
paragraphs
paragraph (F)(1)
to
(F)(1)(b) (iv) of this rule refers to the cost estimates required to
be shown in paragraphs one through four of the letter from the owner's or
operator's chief financial officer [see paragraph (F) of rule
3745-55-51 of the Administrative
Code].
(3) To demonstrate that the
owner or operator meets this test, the owner or operator shall submit the
following items to the director:
(a) A letter
signed by the owner's or operator's chief financial officer and worded as
specified in paragraph (F) of rule
3745-55-51 of the Administrative
Code; and
(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 that:
(i) The accountant 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
(ii) In connection
with that procedure, no matters came to the accountant's attention which caused
the accountant to believe that the specified data should be adjusted.
(4) An owner or operator
of a new facility shall submit the items specified in paragraph (F)(3) of this
rule to the director at least sixty days before the date on which hazardous
waste is first received for treatment, storage, or disposal.
(5) After the initial submittal of items
specified in paragraph (F)(3) of this rule, the owner or operator shall send
updated information to the director within ninety days after the close of each
succeeding fiscal year. This information shall consist of all three items
specified in paragraph (F)(3) of this rule.
(6) If the owner or operator no longer meets
the requirements of paragraph (F)(1) of this rule, the owner or operator shall
send notice to the director of intent to establish alternate financial
assurance as specified in this rule. The notice shall be sent by certified mail
within ninety 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 one hundred twenty days after the end of such fiscal
year.
(7) The director, based on a
reasonable belief that the owner or operator may no longer meet the
requirements of paragraph (F)(1) of this rule, may require reports of financial
condition at any time from the owner or operator in addition to those specified
in paragraph (F)(3) of this rule. If the director finds, on the basis of such
reports or other information, that the owner or operator no longer meets the
requirements of paragraph (F)(1) of this rule, the owner or operator shall
provide alternate financial assurance as specified in this rule within thirty
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 the accountant's report on examination of the
owner's or operator's financial statements [see paragraph (F)(3)(b) of this
rule]. An adverse opinion or a disclaimer of opinion will be cause for
disallowance. The director will evaluate other qualifications on an individual
basis. The owner or operator shall provide alternate financial assurance as
specified in this rule within thirty days after notification of the
disallowance.
(9) The owner or
operator is no longer required to submit the items specified in paragraph
(F)(3) of this rule when either:
(a) An owner
or operator substitutes alternate financial assurance as specified in this
rule.
(b) The director releases the
owner or operator from the requirements of this rule in accordance with
paragraph (I) of this rule.
(10) An owner or operator may meet the
requirements of this rule 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 paragraphs (F)(1) to (F)(8) of this rule and shall comply with the terms of
the guarantee. The wording of the guarantee shall be identical to the wording
specified in paragraph (H) of rule
3745-55-51 of the Administrative
Code. A certified copy of the guarantee shall accompany the items sent to the
director as specified in paragraph (F)(3) of this rule. 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" with and the value received in
consideration of the guarantee. The terms of the guarantee shall provide that:
(a) 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 will do so or establish a trust fund as specified in paragraph
(A) of this rule in the name of the owner or operator.
(b) 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 director. Cancellation may not occur, however,
during the one hundred twenty 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.
(c) If the owner or operator fails to provide
alternate financial assurance as specified in this rule and obtain the written
approval of such alternate assurance from the director within ninety 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 will
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 this rule 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 paragraphs (A), (B), (D), and (E) of this
rule, 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 letter of credit, the owner or operator
may use the trust fund as the standby trust fund for the other mechanisms. A
single standby trust 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 this rule to meet the requirements of this
rule for more than one facility. Evidence of financial assurance submitted to
the director shall include a list showing, for each facility, the U.S. 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 U.S. EPA region, identical evidence of financial assurance shall
be submitted to and maintained with the U.S. EPA regional administrators of all
such regions or the directors of state programs in states authorized to
administer such programs. 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 this rule. Within sixty 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 will notify the owner or operator in writing that the owner or
operator is no longer required by this rule to maintain financial assurance for
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
will 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.
[Comment 1: The notice releases the owner or operator only from
requirements for financial assurance for closure of the facility; the
. The notice
does not release the owner or operator from legal responsibility for meeting
the closure standards.]
[Comment 2: For dates of non-regulatory government
publications, publications of recognized organizations and associations,
federal rules, and federal statutory provisions referenced in this rule, see
rule 3745-50-11 of the Administrative
Code titled "Incorporated by reference."]