Section 132-8-010 - Trust Fund010.01 An owner or operator may satisfy the requirements of this chapter by establishing a trust fund which conforms to the requirements of this section. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State Agency. The owner or operator must provide the Department with an originally signed duplicate of the trust agreement that has been placed in the operating record.010.02 Payments into the trust fund must be made annually by the owner or operator over the estimated life or over the remaining life of the solid waste disposal area, whichever is shorter, in the case of a trust fund for closure or post-closure care, or over one-half of the estimated length of the remedial action program in the case of remedial action for known releases. This period is referred to as the "pay-in period". 010.02A Payments into the trust fund for an owner or operator of a construction and demolition waste disposal area must be made annually and the pay-in period shall not exceed 30 years.010.03 For a trust fund used to demonstrate financial assurance for closure and post-closure care, the first payment into the fund must be at least equal to the current cost estimate for closure or post-closure care, divided by the number of years in the pay-in period as defined in Section 010.02 of this chapter. The amount of subsequent payments must be determined by the following formula: Next Payment = (CE-CV) / Y
where CE is the current cost estimate for closure or post-closure care (updated for inflation or other changes), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
010.04 For a trust fund used to demonstrate financial assurance for remedial action, the first payment into the fund must be at least equal to one-half of the current cost estimate for remedial action, divided by the number of years in the remedial action pay-in period as defined in Section 010.02 of this chapter. The amount of subsequent payments must be determined by the following formula: Next Payment = (RB -CV) /Y
where RB is the most recent estimate of the required trust fund balance for remedial action (i.e., the total costs that will be incurred during the second half of the remedial action period), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
010.05 The initial payment into the trust fund must be made before the initial receipt of waste in the case of closure or post-closure care, or no later than 120 days after the remedial action workplan has been approved by the Department.010.06 If the owner or operator establishes a trust fund after having used one or more alternate mechanisms specified in this chapter, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of Section 010, as applicable.010.07 The owner or operator or other person authorized to conduct closure, post-closure care, or remedial action activities may request reimbursement from the trustee for these expenditures. Requests for reimbursement will be granted by the trustee only if the Department determines sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care, or remedial action, and if justification and documentation of the cost is approved by the Department and a copy placed in the operating record. The Department will provide written notice to the owner or operator of the determination to withhold reimbursement and the reasons for the determination.010.08 The trust fund may be terminated by the owner or operator only if the owner or operator substitutes alternate financial assurance as specified in this chapter or if the owner or operator is no longer required to demonstrate financial responsibility in accordance with the requirements of Sections 004, 006, and 008.010.09 Discounting If the owner or operator establishes a trust fund, the Department may allow discounting of closure cost estimates in Section 003, post-closure cost estimates in Section 005, and/or remedial action costs in Section 007 up to a rate of return for essentially risk free investments, net of inflation, under the following conditions:
010.09A The Department determines that the cost estimates are complete and accurate and the owner or operator has submitted a statement from a registered professional engineer so stating;010.09B The Department finds the facility in compliance with applicable and appropriate permit conditions;010.09C The Department determines that the closure date is certain and the owner or operator certifies that there are no foreseeable factors that will change the estimate of site life; and010.09D Discounted cost estimates must be adjusted annually to reflect inflation and years of remaining facility life.132 Neb. Admin. Code, ch. 8, § 010