Section 329 IAC 15-5-5 - Trust fundAuthority: IC 13-19-3-1; IC 13-20-13-11
Affected: IC 13-30-2; IC 36-9-30
Sec. 5.
(a) The owner or operator of a waste tire storage site may comply with this section by establishing a trust agreement on:(1) forms provided by the department; or(2) other forms approved by the department.(b) Each trust agreement must do the following:(1) Identify facilities and corresponding closure cost estimates covered by the trust agreement.(2) Establish a trust fund, in an amount determined by section 3 of this rule, that guarantees that payments from that fund either:(A) reimburse the owner or operator of the waste tire storage site for department-approved closure work done; or(B) pay the department for doing required closure work.(3) Require that annual valuations of the trust fund be submitted to the department.(4) Require successor trustees to notify the department, in writing, of their appointment at least ten (10) days before the effective date of the appointment.(5) Require the trustee to notify the department, in writing, of the failure of the owner or operator of the waste tire storage site to make a required payment into the fund.(6) Establish that the trust is irrevocable unless terminated, in writing, with the approval of the: (A) owner or operator of the waste tire storage site;(7) Certify that the signer of the trust agreement for the owner or operator of the waste tire storage site was duly authorized to bind the owner or operator of the waste tire storage site.(8) All signatures must be notarized by a notary public commissioned to be a notary public in the state where notarization occurs at the time of the notarization.(9) Establish that the trustee is:(A) authorized to act as a trustee; and(B) an entity whose operations are regulated and examined by a federal or state agency.(10) Require that annual payments into the fund be made within thirty (30) days after each anniversary of the initial payment.(c) The owner or operator of the waste tire storage site shall make payments into the trust fund as follows:(1) The owner or operator of the waste tire storage site shall make a payment into the trust fund each year during the pay-in period.(2) The maximum pay-in period is five (5) years. The pay-in period commences on the date the site first receives waste tires.(3) Annual payments are determined by the following formula: Annual Payment = CE - CV
Y
Where: CE = Current cost estimate.
CV = Current value of the trust fund.
Y = Number of years remaining in the pay-in period.
(4) The owner or operator of the waste tire storage site shall:(A) make the initial payment before the beginning of the pay-in period; and(B) submit to the department a receipt from the trustee for this first annual payment.(5) Subsequent payments must be made not later than thirty (30) days after each anniversary of the first payment.(6) The owner or operator of the waste tire storage site may accelerate payments into the trust fund or may deposit the full amount of the current cost estimate at the time the fund is established.(7) The owner or operator of the waste tire storage site shall maintain the value of the fund at not less than the value would have been if annual payments were made as specified in subdivision (3).(8) If the owner or operator of the waste tire storage site establishes a trust fund after having used one (1) or more alternative mechanisms, the first payment must be in at least the amount the fund would contain if the trust fund were established initially and payments had been made as provided in subdivision (3).(d) The trustee shall evaluate the trust fund annually, as of the day the trust fund was created or on an earlier date if provided in the agreement. The trustee shall notify the owner or operator of the waste tire storage site and the department within thirty (30) days after the evaluation of the trust fund.(e) The owner or operator of the waste tire storage site may request release of excess funds as follows: (1) If the value of the financial assurance is greater than the total amount of the current cost estimate, the owner or operator of the waste tire storage site may submit a written request to the department for release of the amount in excess of the current cost estimate.(2) Within sixty (60) days after receiving a request from the owner or operator of the waste tire storage site for a release of funds, the department shall instruct the trustee to release to the owner or operator of the waste tire storage site the funds that the department specifies in writing to be in excess of the current cost estimate.(f) The owner or operator of the waste tire storage site may request reimbursement for removal expenses as follows: (1) After initiating removal, the owner or operator of the waste tire storage site, or any other person authorized to perform removal, may request reimbursement for removal expenditures by submitting itemized bills to the department.(2) Within sixty (60) days after receiving the itemized bills for removal activities, the department shall determine whether the expenditures are in accordance with the removal plan. The department shall instruct the trustee to make reimbursement in amounts that the department specifies in writing in accordance with the removal plan.(3) If the department determines, based on available information, that the cost of removal will be greater than the value of the trust fund, the department shall withhold reimbursement of amounts necessary to accomplish removal until it is determined that the owner or operator of the waste tire storage site is no longer required to maintain financial assurance for removal. In the event the fund is inadequate to pay all claims, the department shall pay claims according to the following priority: (A) A person with whom the department has contracted to perform removal activities.(B) A person that has completed removal authorized by the department.(C) A person that has completed work that furthered the removal.(D) The owner or operator of the waste tire storage site and related business entities.Solid Waste Management Board; 329 IAC 15-5-5; filed Oct 10, 2000, 3:10 p.m.: 24 IR 330; readopted filed Nov 30, 2006, 4:16 p.m.: 20061227-IR-329050168FRAReadopted filed Jul 18, 2012, 2:26 p.m.: 20120815-IR-329120206BFA; readopted filed Jun 6, 2018, 1:57 p.m.: 20180704-IR-329180170BFAFiled 11/28/2022, 10:42 a.m.: 20221228-IR-329170279FRAErrata filed 2/16/2023, 10:18 a.m.: 20230222-IR-329230072ACA