25 Pa. Code § 271.328 - Trust fund for municipally operated landfills

(a) A trust fund established under this subchapter shall meet the following requirements:

(1) The trust fund shall be established for the sole purpose of providing funding for completion of final closure of the municipal waste landfill and for the taking of measures that may be necessary for the abatement and prevention of adverse effects on the environment, as required by the Department, in accordance with the act, the environmental protection acts, this title, the terms and conditions of the permit and orders issued by the Department and the closure plan.

(2) The trustee shall be a state-chartered or National bank or a financial institution with trust powers or trust company with offices in this Commonwealth and whose trust activities are examined or regulated by a state or Federal agency. The trustee shall have an office located in the county in which the municipality or municipal authority is operating the municipal waste landfill for which the trust fund is established.

(i) The trustee may resign by sending written notice to the Department and the municipality or municipal authority, by certified mail, return receipt requested, of its intention to resign. The resignation will not take effect until the following conditions are met:

(A) The expiration of a 120-day period after the trustee has provided written notice of its intention to resign.

(B) The municipality or municipal authority has appointed a successor trustee and the successor trustee accepts the appointment.

(ii) If the municipality or municipal authority fails to appoint a successor trustee or a successor trustee fails to accept the appointment at the expiration of the 120-day period, the trustee may apply to a court of competent jurisdiction for instructions.

(3) The trust fund shall be established by the municipality or municipal authority. The trust shall provide that the municipality or municipal authority and the Department are co-beneficiaries under the trust.

(4) The trust shall be irrevocable and shall continue until terminated at the written agreement of the municipality or the municipal authority and the Department. A settlor municipality seeking trust termination shall comply with § 271.343 (relating to withdrawals from municipal trust). If the municipality or municipal authority fails or refuses to enter into the written agreement for the termination of the trust, the Department will have the sole power to terminate the trust as provided in § 271.343.

(5) The corpus of the trust fund shall be an amount equal to the cost of completing final closure and shall be calculated according to §§ 271.331 and 271.332 (relating to bond and trust amount determination; and bond and trust amount adjustments). The trust shall be funded by moneys paid quarterly by the municipality or municipal authority in an amount, determined by the Department, computed on the basis of the cost of completing final closure and levied on each ton or cubic yard of solid waste received at the landfill for the quarter for which the payment is being made.

(i) It is not the duty of the trustee to collect from the municipality or municipal authority a quarterly payment required under this section, nor is the trustee responsible for the amount or adequacy of a quarterly payment made by the municipality or municipal authority. The trustee shall send the Department, in writing on a quarterly basis, a statement of the trust account transactions including the amounts received from the municipality or municipal authority and paid into the trust corpus. If the trustee does not receive a quarterly payment within 15 days after the payment is due, the trustee shall promptly notify the Department that it has not received the payment.

(ii) Payments made by the municipality or the municipal authority shall consist of cash, bank checks, bank wire transfers or other means of payment acceptable to the trustee.

(b) The trustee is authorized to invest and reinvest the principal and income of the trust fund and keep the fund invested as a single fund, without distinction between principal and income. In investing, reinvesting and otherwise managing the trust fund, the trustee shall discharge its duties solely in the interest of the beneficiaries. The trustee shall manage the trust fund with that degree of judgment, skill and care under the circumstances then prevailing which persons of prudence, discretion and intelligence, who are familiar with these matters, exercise in the management of their own affairs not in regard to speculation, but in regard to the permanent disposition of the funds, considering the probable income to be derived therefrom as well as the probable safety of their capital.

(c) For purposes of investing or reinvesting the moneys in the trust fund, the trustee is authorized to:

(1) Purchase United States Treasury Bills.

(2) Purchase short-term obligations of the United States Government or its agencies or instrumentalities.

(3) Purchase obligations of the United States of America or its agencies or instrumentalities backed by the full faith and credit of the United States.

(4) Purchase obligations of the Commonwealth or its agencies or instrumentalities backed by the full faith and credit of the Commonwealth.

(5) Purchase obligations of political subdivisions of the Commonwealth or its agencies or instrumentalities backed by the full faith and credit of the political subdivision.

(6) Purchase shares of an investment company registered under the Investment Company Act of 1940 (15 U.S.C.A. §§ 80a-1-80 a-64), whose shares are registered under the Securities Act of 1933 (15 U.S.C.A. §§ 77a-77aa), if the investments of the investment company are those described in this subsection.

(7) Invest in time or demand deposits of the trustee to the extent insured by an agency of the Federal or State Government.

(d) The trustee may, when a municipality which established the trust fund is a city of the first or second class, purchase commercial paper and prime commercial paper defined as follows:

(1) Commercial paper means unsecured promissory notes issued at a discount from par or on an interest bearing basis by an industrial, common carrier, public utility, finance company, real estate investment trust, commercial bank holding companies, or corporations whose credit has been approved by Moody's Investors Service, Incorporated; Standard and Poor's Corporation; Fitch Investors Services, Incorporated; or their successors.

(2) The trustee may not purchase commercial paper without first determining or obtaining the following:

(i) The commercial paper is rated Prime-1, Prime 1-LOC or Prime 1 by Moody's Investors Service, A-1 or A-2 by Standard and Poor's, Fitch 1 by Fitch Investors Service, or the equivalent.

(ii) The certification or other evidence the commercial paper proposed to be delivered is not subordinate to other debt of the issuer.

(iii) The certification or other evidence there is no litigation pending or threatened that would affect the commercial paper.

(iv) The certification or other evidence the issuer is not in default as to payment of principal and interest on its outstanding obligations.

(v) The certification or other evidence the issuer is incorporated in the United States, is transacting business within the United States and has assets of $1 billion or more, or is a wholly owned subsidiary of a corporation which is incorporated in the United States, which is transacting business within the United States and has assets of $1 billion or more.

(e) The trustee is authorized to hold cash awaiting investment or distribution for a reasonable period of time.

(f) The trust agreement shall be provided by the municipality or municipal authority to the trustee. The wording of the trust agreement shall be submitted to the municipality or municipal authority on a form prepared and approved by the Department. An original of the trust agreement shall be submitted to the Department, accompanied by a formal certification of acknowledgement.

(g) The trustee shall annually, at least 30 days prior to the anniversary date of the establishment of the trust fund, furnish to the municipality or municipal authority and the Department a statement confirming the value of the trust fund, and the dates and amounts of the payments into the trust from the municipality and withdrawals for administration or a purpose other than investment or reinvestment. The trustee shall value securities in the trust fund at the lesser of market or par value as of no more than 60 days prior to the anniversary date.

Notes

25 Pa. Code § 271.328

The provisions of this §271.328 adopted September 13, 1991, effective 9/14/1991, 21 Pa.B. 4179.

This section cited in 25 Pa. Code § 271.301 (relating to scope); 25 Pa. Code § 271.311 (relating to new facilities); 25 Pa. Code § 271.312 (relating to existing facilities); 25 Pa. Code § 271.313 (relating to form, terms and conditions of the bond or trust); and 25 Pa. Code § 271.354 (relating to miscellaneous provisions for municipal trusts).