Section 329 IAC 3.1-14-7 - Corrective action or closure letter-of-credit optionAuthority: IC 13-14-8; IC 13-22-2; IC 13-22-8-1; IC 13-22-9-7
Affected: IC 13-22; IC 13-30-3
Sec. 7.
(a) An owner or operator may satisfy the requirements of sections 4 through 6 of this rule, this section, and sections 8 through 11 of this rule by obtaining an irrevocable standby letter-of-credit that conforms to the requirements of this section and submitting the letter to the commissioner. The issuing institution must be an entity that has the authority to issue letters-of-credit and whose letters-of-credit operations are regulated and examined by a federal or state agency.(b) The wording of the letter-of-credit must be identical to the wording specified in section 29 of this rule.(c) An owner or operator who uses a letter-of-credit to satisfy the requirements of sections 4 through 6 of this rule, this section, and sections 8 through 11 of this rule shall establish a standby trust fund. Under the terms of the letter-of-credit, all amounts paid in accordance with a draft by the commissioner must be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the commissioner. The standby trust fund must meet the requirements of the trust fund specified in section 5 of this rule except for the following: (1) An originally signed duplicate of the trust agreement must be submitted to the commissioner with the letter-of-credit.(2) Unless the standby trust fund is funded in accordance with the requirements of sections 4 through 6 of this rule, this section, and sections 8 through 11 of this rule, the following are not required by sections 4 through 6 of this rule, this section, and sections 8 through 11 of this rule: (A) Payments into the trust fund in accordance with section 5 of this rule.(B) Updating of Schedule A of the trust agreement in section 26 of this rule to reflect current corrective action or closure cost estimates.(C) Annual valuations as required by the trust agreement.(D) Notices of nonpayment as required by the trust agreement.(d) The letter-of-credit must be accompanied by a letter from the owner or operator referring to the letter-of-credit by number, issuing institution, and date and provide the following information: (1) The United States Environmental Protection Agency (U.S. EPA) identification number, name, and address of the facility.(2) The amount of funds assured for corrective action or closure of the facility by the letter-of-credit.(e) The letter-of-credit must be irrevocable and issued for a period of at least one (1) year. The letter-of-credit must provide that the expiration date will be automatically extended for a period of at least one (1) year unless, at least one hundred twenty (120) days before the current expiration date, the issuing institution notifies both the owner or operator and the commissioner by certified mail of a decision not to extend the expiration date. Under the terms of the letter-of-credit, the one hundred twenty (120) days will begin on the date when both the owner or operator and the commissioner have received the notice as evidenced by the return receipts.(f) The letter-of-credit must be issued in an amount at least equal to the current corrective action or closure cost estimate except as provided in section 10 of this rule.(g) Whenever the current corrective action or closure cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within sixty (60) days after the increase, shall either:(1) cause the amount of the credit to be increased so that it at least equals the current corrective action or closure cost estimate and submit evidence of the increase to the commissioner; or(2) obtain other financial assurance in accordance with sections 4 through 6 of this rule, this section, and sections 8 through 11 of this rule to cover the increase. Whenever the current corrective action or closure cost estimate decreases, the amount of the credit may be reduced to the amount of the current closure cost estimate following written approval by the commissioner.
(h) Following a final administrative determination under IC 13-30-3 or 42 U.S.C. 6901, et seq. that the owner or operator has failed to perform corrective action or final closure in accordance with the approved corrective action or closure plan when required to do so, the commissioner may draw on the letter-of-credit.(i) If the owner or operator does not establish alternate financial assurance in accordance with sections 5 through 6 of this rule, this section, and sections 8 through 9 of this rule and obtain written approval of the alternate assurance from the commissioner within ninety (90) days after receipt by both the owner or operator and the commissioner 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 commissioner shall draw on the letter-of-credit. The commissioner may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last thirty (30) days of an extension, the commissioner shall draw on the letter-of-credit if the owner or operator has failed to provide alternate financial assurance in accordance with sections 5 through 6 of this rule, this section, and sections 8 through 9 of this rule and obtain written approval of the assurance from the commissioner.(j) The commissioner shall return the letter-of-credit to the issuing institution for termination when: (1) the owner or operator substitutes alternate financial assurance in accordance with sections 5 through 6 of this rule, this section, and sections 8 through 9 of this rule; or(2) the commissioner releases the owner or operator from the requirements of sections 4 through 6 of this rule, this section, and sections 8 through 11 of this rule in accordance with section 12 of this rule.Solid Waste Management Board; 329 IAC 3.1-14-7; filed Jan 24, 1992, 2:00 p.m.: 15 IR 950; filed Apr 1, 1996, 11:00 a.m.: 19 IR 1975; errata filed Jan 10, 2000, 3:01 p.m.: 23 IR 1109; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535Filed 5/11/2021, 12:38 p.m.: 20210609-IR-329140287FRA