Section 329 IAC 11.5-8-1 - Financial assurance for cleanup and closureAuthority: IC 13-14-8-7; IC 13-15; IC 13-19-3
Affected: IC 13-14; IC 13-30; IC 36-9-30
Sec. 1.
(a) An owner or operator that is required to register under this article shall establish financial assurance for closure of the registered facility. The financial assurance must be:(1) provided as a surety bond in accordance with subsection (d); and(2) in the amount that provides for closure of the registered facility in the event the owner or operator has failed to close the registered facility.(b) The amount of financial assurance that provides for closure is determined by the maximum amount in tons of biomass, appropriate feedstock, and residue that may be stored at the facility at one (1) time, multiplied by ninety dollars ($90). For a facility with a confined feeding operation (CFO) approval or concentrated animal feeding operation (CAFO) permit that must comply with this rule in accordance with 329 IAC 11.5-3-1(6), the determination of the amount of financial assurance is required to include only the maximum amount of appropriate feedstock and residue, but not biomass, that may be stored at the facility.(c) Instead of the amount of financial assurance that provides for closure determined under subsection (b), an owner or operator may submit a demonstration of justified lower disposal costs to the commissioner for approval. This approval must: (1) be reconsidered with subsequent renewals; and(2) comply with the inflation calculation required by 329 IAC 11.5-4-1(d).(d) The surety bond must be established as follows:(1) On forms approved by the commissioner.(2) All surety bonds must contain the following:(A) The establishment of minimum bond amount determined by subsection (b) or (c).(B) Provision that, upon notice from the commissioner that the owner or operator has failed to close the facility under the requirements of 329 IAC 11.5-7-1, the surety company shall do either of the following: (i) Deposit the amount that provides for closure into a standby trust fund, as directed by the commissioner.(ii) If the financial assurance amount is less than twenty thousand dollars ($20,000) and a standby trust fund is not established, submit all payments directly to the department for the purpose of accomplishing required closure work.(C) Provision that the surety company may not cancel the bond without first sending notice of cancellation by certified mail to the owner or operator and the commissioner at least one hundred twenty (120) days before the effective date of the cancellation.(D) Provision that the owner or operator may not terminate the bond without prior written authorization by the commissioner.(E) Provision that the owner or operator shall establish a standby trust fund in accordance with subdivision (5) if the owner's or operator's total financial assurance obligations for all facilities registered under this article are twenty thousand dollars ($20,000) or more.(3) The surety company issuing the bond must be:(A) among those listed as acceptable sureties for federal bonds in Circular 570* of the United States Department of the Treasury; and(B) authorized to do business in Indiana.(4) The surety company is not liable for deficiencies in the performance of closure by the owner or operator after the closure certification is deemed adequate by the commissioner.(5) If the financial assurance amount determined under this rule is twenty thousand dollars ($20,000) or more, the owner or operator shall establish a standby trust fund to be utilized in the event the owner or operator fails to fulfill closure obligations and the bond guarantee is exercised. The trust fund must be established in accordance with the following:(A) On forms approved by the commissioner.(B) The establishment of a standby trust fund in the amount determined by subsection (b) or (c) for commissioner-approved work done to close the facility.(C) The requirement for successor trustees to notify the commissioner, in writing, of their appointment at least ten (10) days prior to the appointment becoming effective.(D) The requirement that the funded trust is irrevocable unless terminated in writing by the commissioner.(E) Include a notarization of all signatures by a notary public commissioned to be a notary public in the state where notarization occurs at the time of notarization.(F) The requirement that the trustee is: (i) authorized to act as a trustee; and(ii) an entity whose operations are regulated and examined by a federal agency or state agency.(e) The owner or operator may use a single surety bond to meet the requirements for more than one (1) facility. Evidence of financial assurance submitted to the commissioner must include a list showing, for each facility, the following: (1) The registration number, name, and address.(2) The amount of funds available through the surety bond that must be not less than the sum of funds that would be available if a separate surety bond had been established and maintained for each facility.(f) An owner or operator shall do the following:(1) Notify the commissioner by certified mail within ten (10) days from commencement of a voluntary or involuntary proceeding under bankruptcy under 11 U.S.C. 101 et seq., naming the owner or operator as debtor. An owner or operator who has a surety bond is deemed to be without the required financial assurance in the event of bankruptcy of the institution issuing the surety bond.(2) Reestablish financial assurance within sixty (60) days after an event described in subdivision (1). The registered facility cannot operate outside the sixty (60) day period without establishing a surety bond for the amount required under subsection (b) or (c).(g) In addition to any other penalties provided for in this article or in IC 13-14 and IC 13-30, any failure to obtain, maintain, or fund financial assurance as required by this rule within the prescribed time limits is grounds for a proceeding to revoke the facility's registration or to order final closure of the registered facility.(h) After the closure certification is deemed adequate by the commissioner, the owner or operator of the registered facility is released from the obligation of maintaining financial assurance under this article. *This document is available for viewing at https://www.fiscal.treasury.gov/surety-bonds/circular-570.html and may be obtained from the United States Department of the Treasury, Bureau of the Fiscal Service, Surety Bond Program, 3700 East West Highway, Room 6D22, Hyattsville, MD 20782.
Solid Waste Management Division; 329 IAC 11.5-8-1; filed Mar 14, 2013, 2:57 p.m.: 20130410-IR-329090193FRAFiled 11/19/2021, 9:03 a.m.: 20211215-IR-329200020FRA