329 Ind. Admin. Code 3.1-15-4

Current through December 4, 2024

Section 329 IAC 3.1-15-4 - Financial assurance for closure and corrective action

Authority: 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. 4.

(a) The owner or operator of each facility shall establish financial assurance for closure or corrective action, or both, of the facility, in accordance with the following:

(1) The owner or operator shall choose from the financial assurance options specified in subsections (b) through (g) to establish financial assurance for corrective action.

(2) The owner or operator shall establish financial assurance for closure of a facility that is subject to this rule.

(3) The owner or operator shall establish financial assurance for corrective action of a facility that meets the following criteria:

(A) The facility is subject to corrective action under 40 CFR 264.100 * and 40 CFR 264.101 *.

(B) The commissioner requires the establishment of financial assurance for corrective action, based on one (1) or more of the following:

(i) After the implementation of interim measures for corrective action, the owner or operator has not attained the cleanup goal.

(ii) Corrective action requires a long-term remedy that includes engineering controls as a component of an environmental restrictive covenant.

(iii) A permit or an order requires financial assurance for corrective action.

(b) The requirements for a corrective action or closure trust fund are as follows:

(1) An owner or operator may satisfy the requirements of this section by establishing a corrective action or closure trust fund that conforms to the requirements of this subsection and submitting an originally signed duplicate of the trust agreement to the commissioner. An owner or operator of a new facility shall submit the originally signed duplicate of the trust agreement to the commissioner at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage, recovery, or disposal. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

(2) The wording of the trust agreement must be identical to the wording specified in section 10(a) of this rule, and the trust agreement must be accompanied by a formal certification of acknowledgment in accordance with 329 IAC 3.1-14-26(b). Schedule A of the trust agreement must be updated within sixty (60) days after a change in the amount of the current corrective action or closure cost estimate covered by the agreement.

(3) For corrective action financial assurance, the owner or operator shall deposit the full amount of the current corrective action cost estimate into the trust fund at the time a trust fund for corrective action financial assurance is established.

(4) For closure financial assurance, payments into the trust fund must be made annually by the owner or operator over the term of the initial final state permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereinafter referred to as the pay-in-period. The payments into the closure trust fund must be made as follows:

(A) For a new facility, the first payment must be made before the initial receipt of hazardous waste for treatment, storage, recovery, or disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the commissioner before this initial receipt of hazardous waste. The first payment must be at least equal to the current closure cost estimate, except as provided in subsection (h), divided by the number of years in the pay-in-period. Subsequent payments must be made no later than thirty (30) days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by the following formula:

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Where: CE = The current closure cost estimate.

CV = The current value of the trust fund.

Y = The number of years remaining in the pay-in-period.

(B) If an owner or operator establishes a trust fund in accordance with this subsection, and the value of the trust fund is less than the current closure cost estimate when a permit is awarded for the facility, the amount of the current closure cost estimate still to be paid into the trust fund must be paid in over the pay-in-period as described in this subdivision. Payments must continue to be made no later than thirty (30) days after each anniversary date of the first payment made under 329 IAC 3.1-14. The amount of each payment must be determined by the following formula:

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Where: CE = The current closure cost estimate.

CV = The current value of the trust fund.

Y = The number of years remaining in the pay-in-period.

(5) The owner or operator may accelerate payments into the trust fund or the owner or operator may deposit the full amount of the current closure cost estimate at the time the fund is established. The owner or operator shall maintain the value of the fund at no less than the value that the fund would have if annual payments were made in accordance with subdivision (4).

(6) If the owner or operator establishes a closure trust fund after having used one (1) or more alternate mechanisms specified in accordance with this section or in 329 IAC 3.1-14, the first payment must be in at least the amount that the fund would contain if the trust fund was established initially and annual payments made according to specifications of this section and 329 IAC 3.1-14-5 as applicable.

(7) After the pay-in-period is completed or the trust fund is fully funded, whenever the current corrective action or closure cost estimate changes, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within sixty (60) days after the change in the cost estimate, shall either:

(A) deposit an amount into the fund so that its value after this deposit at least equals the amount of the current corrective action or closure cost estimate; or

(B) obtain other financial assurance in accordance with this section to cover the difference.

(8) If the value of the trust fund is greater than the total amount of the current corrective action or closure cost estimate, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current corrective action or closure cost estimate.

(9) If an owner or operator substitutes other financial assurance in accordance with this section for all or part of the trust fund, the owner or operator may submit a written request to the commissioner for release of the amount in excess of the current corrective action or closure cost estimate covered by the trust fund.

(10) Within sixty (60) days after receiving a request from the owner or operator for release of funds in accordance with subdivision (8) or (9), the commissioner shall instruct the trustee to release to the owner or operator the funds the commissioner specifies in writing.

(11) After beginning corrective action, partial closure, or final closure, an owner or operator or another person authorized to conduct corrective action, partial closure, or final closure may request reimbursements for corrective action, partial closure, or final closure expenditures by submitting itemized bills to the commissioner. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within sixty (60) days after receiving bills for corrective action, partial closure, or final closure activities, the commissioner shall instruct the trustee to make reimbursements in the 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 value of the trust fund, the commissioner may withhold reimbursements of amounts the commissioner deems prudent until it is determined, in accordance with subsection (j) or (k), that the owner or operator is no longer required to maintain financial assurance for corrective action or final closure of the facility. If the commissioner does not instruct the trustee to make reimbursements, the commissioner shall provide the owner or operator with a detailed written statement of reasons.

(12) The commissioner shall agree to termination of the trust when:

(A) the owner or operator substitutes alternate financial assurance in accordance with this section; or

(B) the commissioner releases the owner or operator from the requirements of this section in accordance with subsection (j) or (k).

(c) The requirements for a surety bond guaranteeing payment into a corrective action or closure trust fund are as follows:

(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond that conforms to the requirements of this subsection and submitting the bond to the commissioner. An owner or operator of a new facility shall submit the bond to the commissioner at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage, recovery, or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be:

(A) authorized to do business in Indiana; and

(B) listed as acceptable sureties on federal bonds in Circular 570** of the U.S. Department of the Treasury.

(2) The wording of the surety bond must be identical to the wording specified in section 10(b) of this rule.

(3) The owner or operator who uses a surety bond to satisfy the requirements of this section shall establish a standby trust fund. Under the terms of the bond, all payments must be deposited by the surety directly into the standby trust fund in accordance with instructions from the commissioner. This standby trust fund must meet the requirements specified in subsection (b) except the following:

(A) An originally signed duplicate of the trust agreement must be submitted to the commissioner with the surety bond.

(B) Until the standby trust fund is funded in accordance with the requirements of this section, the following are not required by this rule:

(i) Payments into the trust fund in accordance with subsection (b).

(ii) Updating of Schedule A of the trust agreement in accordance with section 10(a) of this rule to reflect current corrective action or closure cost estimates.

(iii) Annual valuations as required by the trust agreement.

(iv) Notices of nonpayment as required by the trust agreement.

(4) The bond must guarantee that the owner or operator shall complete the following, as applicable:

(A) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of corrective action or final closure of the facility.

(B) Fund the standby trust fund in an amount equal to the penal sum within fifteen (15) days after an:

(i) administrative order to begin corrective action or final closure, issued by the commissioner, becomes final; or

(ii) order to begin corrective action or final closure is issued by a United States district court or other court of competent jurisdiction.

(C) Provide alternate financial assurance in accordance with this section, and obtain the commissioner's written approval of the assurance provided, within ninety (90) days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the bond from the surety.

(5) Under the terms of the bond, the surety becomes liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.

(6) The penal sum of the bond must be in an amount at least equal to the current corrective action or closure cost estimate except as provided in subsection (h).

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

(A) cause the penal sum 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

(B) obtain other financial assurance in accordance with this section to cover the increase. Whenever the current corrective action or closure cost estimate decreases, the penal sum may be reduced to the amount of the current corrective action or closure cost estimate following written approval by the commissioner.

(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the commissioner. Cancellation may not occur during the one hundred twenty (120) days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the commissioner as evidenced by the return receipts.

(9) The owner or operator may cancel the bond if the commissioner has given prior written consent based on the receipt by the commissioner of evidence of alternate financial assurance in accordance with this section.

(d) The requirements for a surety bond guaranteeing performance of corrective action or closure are as follows:

(A) authorized to do business in Indiana; and

(B) listed as acceptable sureties on federal bonds in Circular 570** of the U.S. Department of the Treasury.

(2) The wording of the surety bond must be identical to the wording specified in section 10(c) of this rule.

(A) An originally signed duplicate of the trust agreement must be submitted to the commissioner with the surety bond.

(B) Unless the standby trust fund is funded in accordance with the requirements of this section, the following are not required by this rule:

(i) Payments into the trust fund in accordance with subsection (b).

(ii) Updating of Schedule A of the trust agreement in accordance with section 10(a) of this rule to reflect current corrective action or closure cost estimates.

(iii) Annual valuations as required by the trust agreement.

(iv) Notices of nonpayment as required by the trust agreement.

(4) The bond must guarantee that the owner or operator shall:

(A) perform corrective action or final closure in accordance with the corrective action or closure plan and other requirements of the permit for the facility whenever required to do so; or

(B) provide alternate financial assurance in accordance with this section and obtain the commissioner's written approval of the assurance provided, within ninety (90) days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the bond from the surety.

(5) Under the terms of the bond, the surety becomes liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination under IC 13-30-3 or 42 U.S.C. 6928 that the owner or operator has failed to perform corrective action or final closure in accordance with the approved corrective action or closure plan and other permit requirements when required to do so, under the terms of the bond, the surety shall perform corrective action or final closure as guaranteed by the bond or shall deposit the amount of the penal sum into the standby trust fund.

(6) The penal sum of the bond must be in an amount at least equal to the current corrective action or closure cost estimate.

(A) cause the penal sum 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

(B) obtain other financial assurance in accordance with this section.

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

(9) The owner or operator may cancel the bond if the commissioner has given prior written consent. The commissioner shall provide written consent when:

(A) the owner or operator substitutes alternate financial assurance in accordance with this section; or

(B) the commissioner releases the owner or operator from the requirements of this section in accordance with subsection (j) or (k).

(10) The surety shall not be liable for deficiencies in the performance of corrective action or closure by the owner or operator after the commissioner releases the owner or operator from the requirements of this section in accordance with subsection (j) or (k).

(e) The requirements for a corrective action or closure letter-of-credit are as follows:

(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter-of-credit that conforms to the requirements of this subsection and submitting the letter to the commissioner. An owner or operator of a new facility shall submit the letter-of-credit to the commissioner at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage, recovery, or disposal. The letter-of-credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity that has the authority to issue a letter-of-credit and whose letter-of-credit operations are regulated and examined by a federal or state agency.

(2) The wording of the letter-of-credit must be identical to the wording specified in section 10(d) of this rule.

(3) An owner or operator who uses a letter-of-credit to satisfy the requirements of this section 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. This standby trust fund must meet the requirements of the trust fund specified in subsection (b) except the following:

(A) An originally signed duplicate of the trust agreement must be submitted to the commissioner with the letter-of-credit.

(B) Unless the standby trust fund is funded in accordance with the requirements of this section, the following are not required by this rule:

(i) Payments into the trust fund in accordance with subsection (b).

(ii) Updating of Schedule A of the trust agreement in accordance with section 10(a) of this rule to reflect current corrective action or closure cost estimates.

(iii) Annual valuations as required by the trust agreement.

(iv) Notices of nonpayment as required by the trust agreement.

(4) 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:

(A) The U.S. EPA identification number, name, and address of the facility.

(B) The amount of funds assured for corrective action or closure of the facility by the letter-of-credit.

(5) 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.

(6) 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 subsection (h).

(7) 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:

(A) 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

(B) obtain other financial assurance in accordance with this section 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 corrective action or closure cost estimate following written approval by the commissioner.

(8) Following a final administrative determination under IC 13-30-3 or 42 U.S.C. 6928 that the owner or operator has failed to perform corrective action or final closure in accordance with the corrective action or closure plan and other permit requirements when required to do so, the commissioner may draw on the letter-of-credit.

(9) The commissioner shall draw on the letter-of-credit if the owner or operator does not establish alternate financial assurance in accordance with this section and obtain written approval of 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 of the current expiration date. 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 this section and to obtain written approval of the assurance from the commissioner.

(10) The commissioner shall return the letter-of-credit to the issuing institution for termination when:

(A) the owner or operator substitutes alternate financial assurance in accordance with this section; or

(B) the commissioner releases the owner or operator from the requirements of this section in accordance with subsection (j) or (k).

(f) The requirements for corrective action or closure insurance are as follows:

(1) An owner or operator may satisfy the requirements of this section by obtaining corrective action or closure insurance that conforms to the requirements of this subsection and submitting a certificate of insurance to the commissioner. An owner or operator of a new facility shall submit the certificate of insurance to the commissioner at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage, recovery, or disposal. The insurance must be effective before the initial receipt of hazardous waste. 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.

(2) The wording of the certificate of insurance must be identical to the wording specified in section 10(e) of this rule.

(3) 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 subsection (h). As used in this subsection, "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.

(4) 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.

(5) 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 reimbursements of amounts the commissioner deems prudent until it is determined, in accordance with subsection (j) or (k), that the owner or operator is no longer required to maintain financial assurance for corrective action or final closure of the facility. If the commissioner does not instruct the insurer to make reimbursements, the commissioner shall provide the owner or operator with a detailed written statement of reasons.

(6) 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 subdivision (10). Failure to pay the premium, without substitution of alternate financial assurance in accordance with this section, constitutes a violation of this article 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.

(7) 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 the consent is not unreasonably refused.

(8) 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:

(A) the commissioner deems the facility abandoned;

(B) the permit is terminated or revoked or a new permit is denied;

(C) corrective action or closure is ordered by the commissioner or a United States district court or other court of competent jurisdiction;

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

(E) the premium due is paid.

(9) 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:

(A) 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

(B) obtain other financial assurance in accordance with this section 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.

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

(A) the owner or operator substitutes alternate financial assurance in accordance with this section; or

(B) the commissioner releases the owner or operator from the requirements of this section in accordance with subsection (j) or (k).

(g) The requirements for a financial test and guarantee for corrective action or closure are as follows:

(1) An owner or operator may satisfy the requirements of this section by demonstrating that the owner or operator passes a financial test in accordance with this subsection. To pass the financial test, the owner or operator shall meet the criteria of either clause (A) or (B) as follows:

(A) The owner or operator shall have the following:

(i) Two (2) of the following three (3) ratios:

(AA) A ratio of total liabilities to net worth less than two (2.0).

(BB) A ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than one-tenth (0.1).

(CC) A ratio of current assets to current liabilities greater than one and five-tenths (1.5).

(ii) Net working capital and tangible net worth each at least six (6) times the sum of the current corrective action, closure, and post-closure cost estimates.

(iii) Tangible net worth of at least ten million dollars ($10,000,000).

(iv) Assets located in the United States amounting to at least:

(AA) ninety percent (90%) of the total assets; or

(BB) six (6) times the sum of the current corrective action, closure, and post-closure cost estimates.

(B) The owner or operator shall have the following:

(i) A current rating for the most recent bond issuance of:

(AA) AAA, AA, A, or BBB as issued by Standard and Poor's; or

(BB) Aaa, Aa, A, or Baa as issued by Moody's.

(ii) Tangible net worth at least six (6) times the sum of the current corrective action, closure, and post-closure cost estimates.

(iii) Tangible net worth of at least ten million dollars ($10,000,000).

(iv) Assets located in the United States amounting to at least:

(AA) ninety percent (90%) of the total assets; or

(BB) six (6) times the sum of the current corrective action, closure, and post-closure cost estimates.

(2) As used in subdivision (1), "current corrective action, closure, and post-closure cost estimates" refers to the cost estimates required to be shown in paragraphs 1 through 4 of the letter from the owner's or operator's chief financial officer.

(3) To demonstrate that the owner or operator meets the financial test, the owner or operator shall submit the following items to the commissioner:

(A) A letter signed by the owner's or operator's chief financial officer and worded as specified in section 10(f) of this rule.

(B) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year.

(C) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating the following:

(i) The independent certified public accountant has compared the data that the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in the financial statements.

(ii) In the comparison in item (i), no matters came to the attention of the independent certified public accountant that caused the independent certified public accountant to believe that the specified data should be adjusted.

(4) An owner or operator of a new facility shall submit the items specified in subdivision (3) to the commissioner at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage, recovery, or disposal.

(5) After the initial submission of items specified in subdivision (3), the owner or operator shall send updated information to the commissioner within ninety (90) days after the close of each succeeding fiscal year. This information must consist of all three (3) items specified in subdivision (3).

(6) If the owner or operator no longer meets the requirements of subdivision (1), the owner or operator shall send notice to the commissioner of intent to establish alternate financial assurance in accordance with this section. The notice must be sent by certified mail within ninety (90) days after the end of the fiscal year for which the year-end financial data reflects that the owner or operator no longer meets the requirements. The owner or operator shall provide the alternate financial assurance within one hundred twenty (120) days after the end of the fiscal year.

(7) The commissioner may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subdivision (1), require reports of financial condition at any time from the owner or operator in addition to those specified in subdivision (3). If the commissioner finds, on the basis of the reports or other information, that the owner or operator no longer meets the requirements of subdivision (1), the owner or operator shall provide alternate financial assurance in accordance with this section within thirty (30) days after notification of the finding.

(8) The commissioner may disallow use of the financial test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the report on examination of the owner's or operator's financial statements. An adverse opinion or a disclaimer of opinion is cause for disallowance. The commissioner shall evaluate other qualifications on an individual basis. The owner or operator shall provide alternate financial assurance in accordance with this section within thirty (30) days after notification of the disallowance.

(9) The owner or operator is no longer required to submit the items specified in subdivision (3) when:

(A) the owner or operator substitutes alternate financial assurance in accordance with this section; or

(B) the commissioner releases the owner or operator from the requirements of this section in accordance with subsection (j) or (k).

(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher tier parent corporation of the owner or operator or a firm whose parent corporation is also the parent corporation of the owner or operator. The guarantor shall meet the requirements for owners or operators in subdivisions (1) through (8) and shall comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in section 10(h) of this rule. The guarantee must accompany the items sent to the commissioner in accordance with subdivision (3). One (1) of these items must include the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. The terms of the guarantee must provide the following:

(A) If the owner or operator fails to perform corrective action or final closure of a facility covered by the guarantee in accordance with the corrective action or closure plan and other permit requirements whenever required to do so, the guarantor shall perform corrective action or final closure in accordance with the corrective action or closure plan and other permit requirements or establish a trust fund in accordance with subsection (b) in the name of the owner or operator.

(B) The guarantee must remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the commissioner. Cancellation may not occur during the one hundred twenty (120) days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the commissioner, as evidenced by the return receipts.

(C) The guarantor shall provide alternative financial assurance in the name of the owner or operator if the owner or operator fails to:

(i) provide alternate financial assurance in accordance with this section; and

(ii) obtain the written approval of an alternate assurance from the commissioner within ninety (90) days after receipt by both the owner or operator and the commissioner of a notice of cancellation of the guarantee from the guarantor.

(h) An owner or operator may satisfy the requirements of this section by establishing more than one (1) financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds guaranteeing payment into a trust fund, letters-of-credit, and insurance. The mechanisms must be established in accordance with subsections (b) through (c) and (e) through (f), respectively, except that it is the combination of mechanisms rather than the single mechanism, that must provide financial assurance for an amount at least equal to the current corrective action or closure cost estimate, or both cost estimates. If an owner or operator uses a trust fund in combination with a surety bond or a letter-of-credit, the owner or operator may use the trust fund as the standby trust fund for the other mechanisms. A single standby trust fund may be established for two (2) or more mechanisms. The commissioner may use any or all of the mechanisms to provide for corrective action or closure, or both, of the facility.

(i) An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one (1) facility. Evidence of financial assurance submitted to the commissioner must include a list showing, for each facility, the U.S. EPA identification number, name, address, and the amount of funds for corrective action or closure, or both, assured by the mechanism. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for corrective action or closure, or both, of any of the facilities covered by the mechanism, the commissioner may direct only the amount of funds designated for that facility unless the owner or operator agrees to the use of additional funds available under the mechanism.

(j) Within sixty (60) days after receiving certifications from the owner or operator and an independent registered professional engineer that final closure has been completed in accordance with the approved closure plan, the commissioner shall notify the owner or operator in writing that the owner or operator is no longer required by this section to maintain financial assurance for final closure of the facility unless the commissioner has reason to believe that final closure has not been in accordance with the approved closure plan. The commissioner shall provide the owner or operator a detailed written statement of any reason that closure has not been in accordance with the approved closure plan.

(k) An owner or operator required in subsection (a) to establish financial assurance for corrective action of a facility is released from the requirement to maintain financial assurance when:

(1) the approved remedy for corrective action has attained the cleanup goal; and

(2) the commissioner has notified the owner or operator in writing that financial assurance for corrective action is no longer required.

*These documents are incorporated by reference. Copies of these documents may be obtained from the Government Publishing Office, www.gpo.gov, or are available for review at the Indiana Department of Environmental Management, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Thirteenth Floor, Indianapolis, Indiana 46204.

**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.

329 IAC 3.1-15-4

Solid Waste Management Board; 329 IAC 3.1-15-4; filed Jan 24, 1992, 2:00 p.m.: 15 IR 983; errata filed Feb 6, 1992, 3:15 p.m.: 15 IR 1027; filed Apr 1, 1996, 11:00 a.m.: 19 IR 2018; errata filed Apr 30, 1996, 10:00 a.m.: 19 IR 2289; errata filed Jan 10, 2000, 3:01 p.m.: 23 IR 1109; readopted filed Jan 10, 2001, 3:25 p.m.: 24 IR 1535; filed Apr 5, 2001, 1:29 p.m.: 24 IR 2438

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