329 Ind. Admin. Code 3.1-14-8

Current through December 4, 2024

Section 329 IAC 3.1-14-8 - Corrective action or closure insurance option

Authority: IC 13-14-8; IC 13-22-2; IC 13-22-8-1; IC 13-22-9-7

Affected: IC 13-22

Sec. 8.

(a) An owner or operator may satisfy the requirements of sections 4 through 7 of this rule, this section, and sections 9 through 11 of this rule by obtaining corrective action or closure insurance that conforms to the requirements of this section and submitting a certificate of the insurance to the commissioner. The owner or operator shall submit the certificate of insurance to the commissioner or establish other financial assurance in accordance with sections 5 through 7 of this rule, this section, and section 9 of this rule. At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one (1) or more states.

(b) The wording of the certificate of insurance must be identical to the wording specified in section 30 of this rule.

(c) The corrective action or closure insurance policy must be issued for a face amount at least equal to the current corrective action or closure cost estimate except as provided in section 10 of this rule. As used in this section, "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.

(d) The corrective action or closure insurance policy must guarantee that funds will be available to perform corrective action or close the facility whenever corrective action or final closure occurs. The policy must guarantee that once corrective action or final closure begins, the insurer is responsible for paying out funds up to an amount equal to the face amount of the policy, upon the direction of the commissioner, to the party or parties as the commissioner specifies.

(e) After beginning corrective action, partial closure, or final closure, an owner or operator or any other person authorized to conduct corrective action or closure may request reimbursements for corrective action or closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursements for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within sixty (60) days after receiving bills for corrective action or closure activities, the commissioner shall instruct the insurer to make reimbursements in amounts the commissioner specifies in writing if the commissioner determines that the corrective action, partial closure, or final closure expenditures are in accordance with the approved corrective action or closure plan or otherwise justified. If the commissioner has reason to believe that the maximum cost of corrective action or closure over the remaining life of the facility will be significantly greater than the face amount of the policy, the commissioner may withhold reimbursement of amounts the commissioner deems prudent until it is determined, in accordance with section 12 of this rule, that the owner or operator is no longer required to maintain financial assurance for corrective action or final closure of the particular facility. If the commissioner does not instruct the insurer to make reimbursements, the commissioner shall provide to the owner or operator a detailed written statement of reasons.

(f) The owner or operator shall maintain the policy in full force and effect until the commissioner consents to termination of the policy by the owner or operator in accordance with subsection (j). Failure to pay the premium, without substitution of alternate financial assurance in accordance with sections 5 through 7 of this rule, this section, and section 9 of this rule, constitutes a violation of this rule warranting a remedy the commissioner deems necessary and is authorized to make. The violation is deemed to begin upon receipt by the commissioner of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium rather than upon the date of expiration.

(g) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. The assignment may be conditional upon consent of the insurer provided consent is not unreasonably refused.

(h) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, 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 commissioner. Cancellation, termination, or failure to renew may not occur during the one hundred twenty (120) days beginning with the date of receipt of the notice by both the commissioner and the owner or operator as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy must remain in full force and effect in the event that on or before the date of expiration:

(1) the commissioner deems the facility abandoned;

(2) interim status is terminated or revoked;

(3) corrective action or closure is ordered by the commissioner, U.S. EPA, or court of competent jurisdiction;

(4) the owner or operator is named as debtor in a voluntary or involuntary bankruptcy proceeding under 11 U.S.C. 101 et seq.; or

(5) the premium due is paid.

(i) Whenever the current corrective action or closure cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within sixty (60) days after the increase, shall either:

(1) cause the face amount to be increased to an amount at least equal to 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 7 of this rule, this section, and sections 9 through 11 of this rule to cover the increase.

Whenever the current corrective action or closure cost estimate decreases, the face amount may be reduced to the amount of the current corrective action or closure cost estimate following written approval by the commissioner.

(j) The commissioner shall give written consent to the owner or operator that the owner or operator may terminate the insurance policy when:

(1) the owner or operator substitutes alternate financial assurance in accordance with sections 5 through 7 of this rule, this section, and section 9 of this rule; or

(2) the commissioner releases the owner or operator from the requirements of sections 4 through 7 of this rule, this section, and sections 9 through 11 of this rule in accordance with section 12 of this rule.

329 IAC 3.1-14-8

Solid Waste Management Board; 329 IAC 3.1-14-8; filed Jan 24, 1992, 2:00 p.m.: 15 IR 951; filed Apr 1, 1996, 11:00 a.m.: 19 IR 1976; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535

Filed 5/11/2021, 12:38 p.m.: 20210609-IR-329140287FRA