N.M. Admin. Code § 20.9.10.14

Current through Register Vol. 35, No. 23, December 10, 2024

Section 20.9.10.14 - TRUST FUND

An owner or operator may demonstrate financial assurance for closure, post-closure care, phase I and phase II assessments, or corrective action by establishing a trust fund that is worded as shown in forms supplied by the department. This trust fund may also be used as a repository for funds received from other financial assurance mechanisms. The trust fund shall be established as follows:

A. in the case of a trust fund for closure, post-closure care, or phase I and phase II assessments, payments into the trust fund shall be made at least annually over the term of the initial permit or over the remaining life of the facility, whichever is shorter; in the case of a trust fund for corrective action for known releases, payments into the trust fund shall be made annually over the first half of the estimated length of the corrective action period, or in the time period specified by the permit condition or the secretary's decision; this period is referred to as the pay-in period;

B. for a trust fund used to demonstrate financial assurance for closure, post-closure care, and phase I and phase II assessments, the first payment into the fund shall be at least equal to the current approved cost estimate divided by the number of years in the pay-in period; the amount of subsequent payments shall be determined by the following formula:

CE-CV
Next Payment =	-------------
Y

where CE is the current cost estimate (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;

C. for a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund shall be at least one-half of the current approved cost estimate for corrective action; the amount of subsequent annual payments shall be determined by the following formula:

CE-CV
Next Payment =	-------------
Y

where CE is the current remaining cost estimate for corrective action, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period;

D. in the case of closure, post-closure care, and phase I and phase II assessments, the initial payment into the trust fund shall be made prior to the initial receipt of waste; in the case of corrective action, the initial payment into the trust fund shall be made no later than 120 days after the corrective action remedy has been approved by the secretary;

E. if the owner or operator establishes a trust fund after having used one or more other mechanisms, the initial payment into the trust fund shall be at least equal to the amount that the fund would contain if the trust fund had been established initially and annual payments had been made according to the specifications of Paragraphs (1), (2) and (3) of Subsection C of this section, as applicable;

F. the owner or operator, or other person authorized to conduct closure, post-closure care, phase I and phase II assessments, or corrective action activities may request reimbursement from the trust fund for these expenditures by submitting itemized bills to the secretary; unless there is an imminent threat to public health, welfare and safety or the environment, or undue economic hardship would delay or cease the required activities, requests for reimbursement shall be granted by the secretary only if the trust fund assets are sufficient to cover the remaining costs of required activities, and if justification and documentation of the expenditure is filed with the secretary and placed in the operating record; withdrawals of any funds from the trust fund shall be directed in writing to the trustee by the secretary;

G. the trust fund may be terminated only if the owner or operator substitutes alternate financial assurance as approved in writing by the secretary as specified in 20.9.10.13 - 20.9.10.23 NMAC or if the secretary determines that the owner or operator is no longer required to demonstrate financial assurance;

H. the trustees shall be a trust company or banks authorized to do business as a trust company in New Mexico under the Trust Company Act, NMSA 1978 Section 58-9-4 or 58-10-35, or authorized under federal law;

I. the trustee shall file annual reports on the trust fund balance with the department.

N.M. Admin. Code § 20.9.10.14

20.9.10.14 NMAC - Rp, 20 NMAC 9.1.IX.906, 8/2/2007