(4) The owner or operator may accelerate payments into the trust fund or he
may deposit the full amount of the current post-closure cost estimate at the
time the fund is established. However, he must maintain the value of the fund at
no less than the value that the fund would have if annual payments were made as
specified in paragraph (a)(3) of this section.
(5) If the owner or operator establishes a post-closure trust fund after
having used one or more alternate mechanisms specified in this section or in
§265.145 of this chapter, his first payment must be in at least the amount that
the fund would contain if the trust fund were established initially and annual
payments made according to specifications of this paragraph and §265.145(a) of
this chapter, as applicable.
(6) After the pay-in period is completed, whenever the current post-closure
cost estimate changes during the operating life of the facility, the owner or
operator must 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 60 days after the change in the
cost estimate, must either deposit an amount into the fund so that its value
after this deposit at least equals the amount of the current post-closure cost
estimate, or obtain other financial assurance as specified in this section to
cover the difference.
(7) During the operating life of the facility, if the value of the trust fund
is greater than the total amount of the current post-closure cost estimate, the
owner or operator may submit a written request to the Regional Administrator for
release of the amount in excess of the current post-closure cost estimate.
(8) If an owner or operator substitutes other financial assurance as
specified in this section for all or part of the trust fund, he may submit a
written request to the Regional Administrator for release of the amount in
excess of the current post-closure cost estimate covered by the trust fund.
(9) Within 60 days after receiving a request from the owner or operator for
release of funds as specified in paragraph (a) (7) or (8) of this section, the
Regional Administrator will instruct the trustee to release to the owner or
operator such funds as the Regional Administrator specifies in writing.
(10) During the period of post-closure care, the Regional Administrator may
approve a release of funds if the owner or operator demonstrates to the Regional
Administrator that the value of the trust fund exceeds the remaining cost of
post-closure care.
(11) An owner or operator or any other person authorized to conduct
post-closure care may request reimbursements for post-closure care expenditures
by submitting itemized bills to the Regional Administrator. Within 60 days after
receiving bills for post-closure care activities, the Regional Administrator
will instruct the trustee to make reimbursements in those amounts as the
Regional Administrator specifies in writing, if the Regional Administrator
determines that the post-closure care expenditures are in accordance with the
approved post-closure plan or otherwise justified. If the Regional Administrator
does not instruct the trustee to make such reimbursements, he will provide the
owner or operator with a detailed written statement of reasons.
(12) The Regional Administrator will agree to termination of the trust when:
(i) An owner or operator substitutes alternate financial assurance as
specified in this section; or
(ii) The Regional Administrator releases the owner or operator from the
requirements of this section in accordance with §264.145(i).
(b) Surety bond guaranteeing payment into a post-closure trust fund.
(1) An owner or operator may satisfy the requirements of this section by
obtaining a surety bond which conforms to the requirements of this paragraph and
submitting the bond to the Regional Administrator. An owner or operator of a new
facility must submit the bond to the Regional Administrator at least 60 days
before the date on which hazardous waste is first received for disposal. The
bond must be effective before this initial receipt of hazardous waste. The
surety company issuing the bond must, at a minimum, be among those 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 §264.151(b).
(3) The owner or operator who uses a surety bond to satisfy the requirements
of this section must also establish a standby trust fund. Under the terms of the
bond, all payments made thereunder will be deposited by the surety directly into
the standby trust fund in accordance with instructions from the Regional
Administrator. This standby trust fund must meet the requirements specified in
§264.145(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted
to the Regional Administrator with the surety bond; and
(ii) Until the standby trust fund is funded pursuant to the requirements of
this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show
current post-closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Fund the standby trust fund in an amount equal to the penal sum of the
bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within
15 days after an administrative order to begin final closure issued by the
Regional Administrator becomes final, or within 15 days after an order to begin
final closure is issued by a U.S. district court or other court of competent
jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and
obtain the Regional Administrator's written approval of the assurance provided,
within 90 days after receipt by both the owner or operator and the Regional
Administrator of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become 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 post-closure cost estimate, except as provided in §264.145(g).
(7) Whenever the current post-closure cost estimate increases to an amount
greater than the penal sum, the owner or operator, within 60 days after the
increase, must either cause the penal sum to be increased to an amount at least
equal to the current post-closure cost estimate and submit evidence of such
increase to the Regional Administrator, or obtain other financial assurance as
specified in this section to cover the increase. Whenever the current
post-closure cost estimate decreases, the penal sum may be reduced to the amount
of the current post-closure cost estimate following written approval by the
Regional Administrator.
(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
Regional Administrator. Cancellation may not occur, however, during the 120 days
beginning on the date of receipt of the notice of cancellation by both the owner
or operator and the Regional Administrator, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Regional Administrator
has given prior written consent based on his receipt of evidence of alternate
financial assurance as specified in this section.
(c) Surety bond guaranteeing performance of post-closure care. (1) An
owner or operator may satisfy the requirements of this section by obtaining a
surety bond which conforms to the requirements of this paragraph and submitting
the bond to the Regional Administrator. An owner or operator of a new facility
must submit the bond to the Regional Administrator at least 60 days before the
date on which hazardous waste is first received for disposal. The bond must be
effective before this initial receipt of hazardous waste. The surety company
issuing the bond must, at a minimum, be among those 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 §264.151(c).
(3) The owner or operator who uses a surety bond to satisfy the requirements
of this section must also establish a standby trust fund. Under the terms of the
bond, all payments made thereunder will be deposited by the surety directly into
the standby trust fund in accordance with instructions from the Regional
Administrator. This standby trust fund must meet the requirements specified in
§264.145(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted
to the Regional Administrator with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of
this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show
current post-closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Perform post-closure care in accordance with the post-closure plan and
other requirements of the permit for the facility; or
(ii) Provide alternate financial assurance as specified in this section, and
obtain the Regional Administrator's written approval of the assurance provided,
within 90 days of receipt by both the owner or operator and the Regional
Administrator of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond
obligation when the owner or operator fails to perform as guaranteed by the
bond. Following a final administrative determination pursuant to section 3008 of
RCRA that the owner or operator has failed to perform post-closure care in
accordance with the approved post-closure plan and other permit requirements,
under the terms of the bond the surety will perform post-closure care in
accordance with the post-closure plan and other permit requirements or will
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 post-closure cost estimate.
(7) Whenever the current post-closure cost estimate increases to an amount
greater than the penal sum during the operating life of the facility, the owner
or operator, within 60 days after the increase, must either cause the penal sum
to be increased to an amount at least equal to the current post-closure cost
estimate and submit evidence of such increase to the Regional Administrator, or
obtain other financial assurance as specified in this section. Whenever the
current post-closure cost estimate decreases during the operating life of the
facility, the penal sum may be reduced to the amount of the current post-closure
cost estimate following written approval by the Regional Administrator.
(8) During the period of post-closure care, the Regional Administrator may
approve a decrease in the penal sum if the owner or operator demonstrates to the
Regional Administrator that the amount exceeds the remaining cost of
post-closure care.
(9) 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
Regional Administrator. Cancellation may not occur, however, during the 120 days
beginning on the date of receipt of the notice of cancellation by both the owner
or operator and the Regional Administrator, as evidenced by the return receipts.
(10) The owner or operator may cancel the bond if the Regional Administrator
has given prior written consent. The Regional Administrator will provide such
written consent when:
(i) An owner or operator substitutes alternate financial assurance as
specified in this section; or
(ii) The Regional Administrator releases the owner or operator from the
requirements of this section in accordance with §264.145(i).
(11) The surety will not be liable for deficiencies in the performance of
post-closure care by the owner or operator after the Regional Administrator
releases the owner or operator from the requirements of this section in
accordance with §264.145(i).
(d) Post-closure letter of credit. (1) An owner or operator may
satisfy the requirements of this section by obtaining an irrevocable standby
letter of credit which conforms to the requirements of this paragraph and
submitting the letter to the Regional Administrator. An owner or operator of a
new facility must submit the letter of credit to the Regional Administrator at
least 60 days before the date on which hazardous waste is first received for
disposal. The letter of credit must be effective before this initial receipt of
hazardous waste. The issuing institution must be an entity which has the
authority to issue letters 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 §264.151(d).
(3) An owner or operator who uses a letter of credit to satisfy the
requirements of this section must also establish a standby trust fund. Under the
terms of the letter of credit, all amounts paid pursuant to a draft by the
Regional Administrator will be deposited by the issuing institution directly
into the standby trust fund in accordance with instructions from the Regional
Administrator. This standby trust fund must meet the requirements of the trust
fund specified in §264.145(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted
to the Regional Administrator with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of
this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show
current post-closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) 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 providing the following information: the EPA Identification Number,
name, and address of the facility, and the amount of funds assured for
post-closure care of the facility by the letter of credit.
(5) The letter of credit must be irrevocable and issued for a period of at
least 1 year. The letter of credit must provide that the expiration date will be
automatically extended for a period of at least 1 year unless, at least 120 days
before the current expiration date, the issuing institution notifies both the
owner or operator and the Regional Administrator by certified mail of a decision
not to extend the expiration date. Under the terms of the letter of credit, the
120 days will begin on the date when both the owner or operator and the Regional
Administrator have received the notice, as evidenced by the return receipts.
(6) The letter of credit must be issued in a amount at least equal to the
current post-closure cost estimate, except as provided in §264.145(g).
(7) Whenever the current post-closure cost estimate increases to an amount
greater than the amount of the credit during the operating life of the facility,
the owner or operator, within 60 days after the increase, must either cause the
amount of the credit to be increased so that it at least equals the current
post-closure cost estimate and submit evidence of such increase to the Regional
Administrator, or obtain other financial assurance as specified in this section
to cover the increase. Whenever the current post-closure cost estimate decreases
during the operating life of the facility, the amount of the credit may be
reduced to the amount of the current post-closure cost estimate following
written approval by the Regional Administrator.
(8) During the period of post-closure care, the Regional Administrator may
approve a decrease in the amount of the letter of credit if the owner or
operator demonstrates to the Regional Administrator that the amount exceeds the
remaining cost of post-closure care.
(9) Following a final administrative determination pursuant to section 3008
of RCRA that the owner or operator has failed to perform post-closure care in
accordance with the approved post-closure plan and other permit requirements,
the Regional Administrator may draw on the letter of credit.
(10) If the owner or operator does not establish alternate financial
assurance as specified in this section and obtain written approval of such
alternate assurance from the Regional Administrator within 90 days after receipt
by both the owner or operator and the Regional Administrator of a notice from
the issuing institution that it has decided not to extend the letter of credit
beyond the current expiration date, the Regional Administrator will draw on the
letter of credit. The Regional Administrator may delay the drawing if the
issuing institution grants an extension of the term of the credit. During the
last 30 days of any such extension the Regional Administrator will draw on the
letter of credit if the owner or operator has failed to provide alternate
financial assurance as specified in this section and obtain written approval of
such assurance from the Regional Administrator.
(11) The Regional Administrator will return the letter of credit to the
issuing institution for termination when:
(i) An owner or operator substitutes alternate financial assurance as
specified in this section; or
(ii) The Regional Administrator releases the owner or operator from the
requirements of this section in accordance with §264.145(i).
(e) Post-closure insurance. (1) An owner or operator may satisfy the
requirements of this section by obtaining post-closure insurance which conforms
to the requirements of this paragraph and submitting a certificate of such
insurance to the Regional Administrator. An owner or operator of a new facility
must submit the certificate of insurance to the Regional Administrator at least
60 days before the date on which hazardous waste is first received for disposal.
The insurance must be effective before this 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 or more States.
(2) The wording of the certificate of insurance must be identical to the
wording specified in §264.151(e).
(3) The post-closure insurance policy must be issued for a face amount at
least equal to the current post-closure cost estimate, except as provided in
§264.145(g). The term "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 post-closure insurance policy must guarantee that funds will be
available to provide post-closure care of the facility whenever the post-closure
period begins. The policy must also guarantee that once post-closure care
begins, the insurer will be responsible for paying out funds, up to an amount
equal to the face amount of the policy, upon the direction of the Regional
Administrator, to such party or parties as the Regional Administrator specifies.
(5) An owner or operator or any other person authorized to conduct
post-closure care may request reimbursements for post-closure care expenditures
by submitting itemized bills to the Regional Administrator. Within 60 days after
receiving bills for post-closure care activities, the Regional Administrator
will instruct the insurer to make reimbursements in those amounts as the
Regional Administrator specifies in writing, if the Regional Administrator
determines that the post-closure care expenditures are in accordance with the
approved post-closure plan or otherwise justified. If the Regional Administrator
does not instruct the insurer to make such reimbursements, he will provide the
owner or operator with a detailed written statement of reasons.
(6) The owner or operator must maintain the policy in full force and effect
until the Regional Administrator consents to termination of the policy by the
owner or operator as specified in paragraph (e)(11) of this section. Failure to
pay the premium, without substitution of alternate financial assurance as
specified in this section, will constitute a significant violation of these
regulations, warranting such remedy as the Regional Administrator deems
necessary. Such violation will be deemed to begin upon receipt by the Regional
Administrator 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. Such assignment may be conditional upon consent
of the insurer, provided such 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
Regional Administrator. Cancellation, termination, or failure to renew may not
occur, however, during the 120 days beginning with the date of receipt of the
notice by both the Regional Administrator and the owner or operator, as
evidenced by the return receipts. Cancellation, termination, or failure to renew
may not occur and the policy will remain in full force and effect in the event
that on or before the date of expiration:
(i) The Regional Administrator deems the facility abandoned; or
(ii) The permit is terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Regional Administrator or a U.S. district
court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code; or
(v) The premium due is paid.
(9) Whenever the current post-closure cost estimate increases to an amount
greater than the face amount of the policy during the operating life of the
facility, the owner or operator, within 60 days after the increase, must either
cause the face amount to be increased to an amount at least equal to the current
post-closure cost estimate and submit evidence of such increase to the Regional
Administrator, or obtain other financial assurance as specified in this section
to cover the increase. Whenever the current post-closure cost estimate decreases
during the operating life of the facility, the face amount may be reduced to the
amount of the current post-closure cost estimate following written approval by
the Regional Administrator.
(10) Commencing on the date that liability to make payments pursuant to the
policy accrues, the insurer will thereafter annually increase the face amount of
the policy. Such increase must be equivalent to the face amount of the policy,
less any payments made, multiplied by an amount equivalent to 85 percent of the
most recent investment rate or of the equivalent coupon-issue yield announced by
the U.S. Treasury for 26-week Treasury securities.
(11) The Regional Administrator will give written consent to the owner or
operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes alternate financial assurance as
specified in this section; or
(ii) The Regional Administrator releases the owner or operator from the
requirements of this section in accordance with §264.145(i).
(f) Financial test and corporate guarantee for post-closure care. (1)
An owner or operator may satisfy the requirements of this section by
demonstrating that he passes a financial test as specified in this paragraph. To
pass this test the owner or operator must meet the criteria of either paragraph
(f)(1)(i) or (ii) of this section:
(i) The owner or operator must have:
(A) Two of the following three ratios: a ratio of total liabilities to net
worth less than 2.0; a ratio of the sum of net income plus depreciation,
depletion, and amortization to total liabilities greater than 0.1; and a ratio
of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the
sum of the current closure and post-closure cost estimates and the current
plugging and abandonment cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets in the United States amounting to at least 90 percent of his total
assets or at least six times the sum of the current closure and post-closure
cost estimates and the current plugging and abandonment cost estimates.
(ii) The owner or operator must have:
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB
as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and
(B) Tangible net worth at least six times the sum of the current closure and
post-closure cost estimates and the current plugging and abandonment cost
estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of
his total assets or at least six times the sum of the current closure and
post-closure cost estimates and the current plugging and abandonment cost
estimates.
(2) The phrase "current closure and post-closure cost estimates" as used in
paragraph (f)(1) of this section refers to the cost estimates required to be
shown in paragraphs 1-4 of the letter from the owner's or operator's chief
financial officer (§264.151(f)). The phrase "current plugging and abandonment
cost estimates" as used in paragraph (f)(1) of this section refers to the cost
estimates required to be shown in paragraphs 1-4 of the letter from the owner's
or operator's chief financial officer (§144.70(f) of this title).
(3) To demonstrate that he meets this test, the owner or operator must submit
the following items to the Regional Administrator:
(i) A letter signed by the owner's or operator's chief financial officer and
worded as specified in §264.151(f); and
(ii) 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; and
(iii) A special report from the owner's or operator's independent certified
public accountant to the owner or operator stating that:
(A) He has compared the data which 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
such financial statements; and
(B) In connection with that procedure, no matters came to his attention which
caused him to believe that the specified data should be adjusted.
(4) An owner or operator of a new facility must submit the items specified in
paragraph (f)(3) of this section to the Regional Administrator at least 60 days
before the date on which hazardous waste is first received for disposal.
(5) After the initial submission of items specified in paragraph (f)(3) of
this section, the owner or operator must send updated information to the
Regional Administrator within 90 days after the close of each succeeding fiscal
year. This information must consist of all three items specified in paragraph
(f)(3) of this section.
(6) If the owner or operator no longer meets the requirements of paragraph
(f)(1) of this section, he must send notice to the Regional Administrator of
intent to establish alternate financial assurance as specified in this section.
The notice must be sent by certified mail within 90 days after the end of the
fiscal year for which the year-end financial data show that the owner or
operator no longer meets the requirements. The owner or operator must provide
the alternate financial assurance within 120 days after the end of such fiscal
year.
(7) The Regional Administrator may, based on a reasonable belief that the
owner or operator may no longer meet the requirements of paragraph (f)(1) of
this section, require reports of financial condition at any time from the owner
or operator in addition to those specified in paragraph (f)(3) of this section.
If the Regional Administrator finds, on the basis of such reports or other
information, that the owner or operator no longer meets the requirements of
paragraph (f)(1) of this section, the owner or operator must provide alternate
financial assurance as specified in this section within 30 days after
notification of such a finding.
(8) The Regional Administrator may disallow use of this test on the basis of
qualifications in the opinion expressed by the independent certified public
accountant in his report on examination of the owner's or operator's financial
statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a
disclaimer of opinion will be cause for disallowance. The Regional Administrator
will evaluate other qualifications on an individual basis. The owner or operator
must provide alternate financial assurance as specified in this section within
30 days after notification of the disallowance.
(9) During the period of post-closure care, the Regional Administrator may
approve a decrease in the current post-closure cost estimate for which this test
demonstrates financial assurance if the owner or operator demonstrates to the
Regional Administrator that the amount of the cost estimate exceeds the
remaining cost of post-closure care.
(10) The owner or operator is no longer required to submit the items
specified in paragraph (f)(3) of this section when:
(i) An owner or operator substitutes alternate financial assurance as
specified in this section; or
(ii) The Regional Administrator releases the owner or operator from the
requirements of this section in accordance with §264.145(i).
(11) An owner or operator may meet the requirements for this section by
obtaining a written guarantee. The guarantor must be the direct of higher-tier
parent corporation of the owner or operator, a firm whose parent corporation is
also the parent corporation of the owner or operator, or a firm with a
"substantial business relationship" with the owner or operator. The guarantor
must meet the requirements for owners or operators in paragraphs (f)(1) through
(9) of this section and must comply with the terms of the guarantee. The wording
of the guarantee must be identical to the wording specified in §264.151(h). A
certified copy of the guarantee must accompany the items sent to the Regional
Administrator as specified in paragraph (f)(3) of this section. One of these
items must be 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. If the guarantor is a firm with a "substantial business relationship"
with the owner or operator, this letter must describe this "substantial business
relationship" and the value received in consideration of the guarantee. The
terms of the guarantee must provide that:
(i) If the owner or operator fails to perform post-closure care of a facility
covered by the corporate guarantee in accordance with the post-closure plan and
other permit requirements whenever required to do so, the guarantor will do so
or establish a trust fund as specified in §264.145(a) in the name of the owner
or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends
notice of cancellation by certified mail to the owner or operator and to the
Regional Administrator. Cancellation may not occur, however, during the 120 days
beginning on the date of receipt of the notice of cancellation by both the owner
or operator and the Regional Administrator, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternate financial assurance
as specified in this section and obtain the written approval of such alternate
assurance from the Regional Administrator within 90 days after receipt by both
the owner or operator and the Regional Administrator of a notice of cancellation
of the corporate guarantee from the guarantor, the guarantor will provide such
alternate financial assurance in the name of the owner or operator.
(g) Use of multiple financial mechanisms. An owner or operator may
satisfy the requirements of this section by establishing more than one 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 as specified in paragraphs (a), (b), (d), and (e),
respectively, of this section, except that it is the combination of mechanisms,
rather than the single mechanism, which must provide financial assurance for an
amount at least equal to the current post-closure cost estimate. If an owner or
operator uses a trust fund in combination with a surety bond or a letter of
credit, he may use the trust fund as the standby trust fund for the other
mechanisms. A single standby trust fund may be established for two or more
mechanisms. The Regional Administrator may use any or all of the mechanisms to
provide for post-closure care of the facility.
(h) Use of a financial mechanism for multiple facilities. 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 facility. Evidence of
financial assurance submitted to the Regional Administrator must include a list
showing, for each facility, the EPA Identification Number, name, address, and
the amount of funds for post-closure care assured by the mechanism. If the
facilities covered by the mechanism are in more than one Region, identical
evidence of financial assurance must be submitted to and maintained with the
Regional Administrators of all such Regions. 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 post-closure
care of any of the facilities covered by the mechanism, the Regional
Administrator 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.
(i) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving certifications from the owner or
operator and an independent registered professional engineer that the
post-closure care period has been completed for a hazardous waste disposal unit
in accordance with the approved plan, the Regional Administrator will notify the
owner or operator that he is no longer required to maintain financial assurance
for post-closure care of that unit, unless the Regional Administrator has reason
to believe that post-closure care has not been in accordance with the approved
post-closure plan. The Regional Administrator shall provide the owner or
operator with a detailed written statement of any such reason to believe that
post-closure care has not been in accordance with the approved post-closure
plan.
[47 FR 15047, Apr. 7, 1982, as amended at 51 FR 16449, May 2, 1986; 57
FR 42836, Sept. 16, 1992]
