Code of Maine Rules › 06 - DEPARTMENT OF ENVIRONMENTAL PROTECTION › 096 - DEPARTMENT OF ENVIRONMENTAL PROTECTION - GENERAL › Chapter 400 - GENERAL PROVISIONS › Section 096-400-11 - Financial Assurance for Solid Waste Disposal Facility Closure and Post-Closure Care and Corrective Action

Current through 2024-29, July 17, 2024
A.
Financial Assurance for Closure and Post-Closure Care
(1)
Applicability
. An owner or
				operator of a solid waste disposal facility shall provide financial assurance
				sufficient to ensure that funds are available to pay for the anticipated costs
				of compliance with all facility closure, post-closure maintenance, and
				post-closure monitoring requirements. State or federally owned solid waste
				disposal facilities, and landfills regulated under the provisions of 06-096 CMR
				401, section 7, are not subject to the requirements of this section. Financial
				assurance must be provided in accordance with the requirements of this section.
This section does not apply to a municipally owned or
				  operated solid waste disposal facility that accepts exclusively special waste,
				  construction and demolition debris, land clearing debris or any combination of
				  those types of waste.
(2)
Time-line for Meeting Financial Assurance Requirements
. Adequate
				financial assurance as approved by the Department must be provided by the solid
				waste disposal facility owner or operator according to the following schedules:
(a) For new facilities, prior to the receipt
				of solid wastes;
(b) For transfer
				of ownership, the financial assurance of the original owner or operator must
				remain in place until the transfer of ownership takes place. A new owner must
				provide financial assurance that is received and approved by the Department in
				compliance with these rules before the transfer of ownership;
(c) For all solid waste disposal facilities
				not excluded in paragraph A(1) above and not currently providing financial
				assurance under the solid waste management rules or under conditions of the
				facility's license, within 120 days of the effective date of this rule.
(3)
Cost
				Computation
(a) Based on Third Party
				Work. The amount of financial assurance required of a solid waste disposal
				facility owner or operator must be approved by the Department. The amount may
				be adjusted from time to time as required by subparagraph A(4)(c). The amount
				of the financial assurance must be at least equal to the estimated cost of a
				third party:
(i) Closing the incinerator or
				landfill in accordance with the closure criteria of these rules;
(ii) Conducting post-closure care and
				maintenance of the facility, including environmental monitoring and reporting
				as required by law;
(iii)
				Collecting and treating all leachate or other contaminants generated by the
				facility during the post-closure period; and
(iv) Collecting, controlling, and treating
				landfill gases during the post-closure period.
(b)
Thirty Year Post-Closure
				Period
. The cost estimates must be based on projections for the entire
				expected time that the facility is expected to be generating leachate, methane
				or other gases, contaminants or otherwise potentially creating an adverse
				environmental impact, but in no case less than 30 years after a landfill
				facility closes. The financial assurance cost estimates must be made in
				accordance with established estimating practices and may not incorporate any
				salvage or other value that may be realized by the sale of materials, wastes,
				facility structures or equipment, land, or other assets associated with the
				facility.
(4)
Financial Assurance Funding
(a)
Initial Payment for a New Facility
. A solid waste disposal
				facility owner or operator shall provide financial assurance in accordance with
				this section, as approved by the Department, and prior to the facility
				receiving wastes, in the following amounts:
(i) If financial assurance is provided with a
				letter of credit, surety bond, or reserve account, the current estimate of the
				amount required for closure and post-closure care as established in paragraph
				A(3) above; and
(ii) If financial
				assurance is provided with a cash trust fund, an amount equal to the current
				cost estimate for closure and post-closure care to close the facility after the
				first year of operation. Annual payments after that will be the total cost of
				closure and post-closure care, divided by the number of years in the pay-in
				period. The pay-in period shall be the years of expected operation of the
				landfill minus one year. Trust fund payments in subsequent years must be
				determined calculating the then current cost for closure and post-closure care,
				subtracting the current value of the trust fund minus all taxes, brokerage
				commissions and other expenses paid from the fund and dividing the remainder by
				the number of years remaining in the pay-in period.
(b)
Initial Payment for Existing
				Facilities
. The owner or operator of an existing solid waste disposal
				facility, if financial assurance for closure and post-closure care and
				maintenance of that facility is not already being provided, shall provide
				financial assurance in compliance with the provisions below.
(i) If financial assurance is provided with a
				letter of credit, surety bond, or reserve fund, the amount provided in
				subparagraph (4)(a)(i) above;
(ii)
				If financial assurance is provided with a cash trust fund, an initial payment
				into the trust fund of at least the amount that the fund would contain if the
				trust fund had been established when the solid waste disposal facility became
				operational and had received annual payments made according to the
				specification of subparagraph (4)(a)(ii).
(c)
Annual Update of Costs
(i)
Modifications
. The amount
				of financial assurance must be calculated annually throughout the operating
				life of the solid waste disposal facility. Without limitation, changes in the
				amount of financial assurance are required due to modifications to the license,
				changes in operation, changed financial or site conditions, inflation, changes
				in the number of years remaining before anticipated closure, and changes in
				legal requirements for closure or post-closure maintenance and care. The owner
				or operator shall amend the financial assurance calculation annually based upon
				current costs of a third party undertaking the closure and post-closure care
				and other work required by the Department in accordance with then applicable
				rule or an approved Closure Plan. This calculation shall be reported in writing
				to the Department as part of the disposal facility's annual report and is
				subject to Department review and approval. Upon approval, the owner/operator
				must obtain financial assurance for any calculated increase within 60 days. The
				amount of financial assurance may also be adjusted downward in accordance with
				these provisions.
(ii)
Annual
				Inflation Adjustment Method
. When computing the annual inflation
				adjustment for closure and post-closure trust funds, the owner or operator must
				use the current Implicit Price Deflator for Gross Domestic Product as published
				by the US. Department of Commerce in "Survey of Current Business" a successor
				index, or other Department approved index.
(d)
Other Requirements
(i)
Funds Available when Needed
. All financial assurance mechanisms must ensure that the funds necessary to
				meet the costs of closure and post-closure care will be available within 30
				days of the Department's request for, or approval of, release of
				funds.
(ii)
Valid
				Mechanism
. Each financial assurance mechanism must be legally valid,
				binding, and enforceable under State and federal law. Trust fund arrangements
				must be formalized in an agreement that is acceptable to the Department. Such a
				trust fund should have substantially the same wording and conditions as the
				example agreement in Appendix B of this Chapter. If an owner or operator elects
				to use a form of trust agreement that differs materially from Appendix B of
				this Chapter, the owner or operator shall pay the Department's reasonable costs
				of review of the agreement which may include an outside independent attorney or
				trust officer of the Department's choosing that has expertise in financial
				assurance mechanisms. Each trust agreement must include a schedule that
				contains the payment commitment of the owner or operator.
(iii)
Standby Trust Requirements
. If a facility owner or operator chooses to meet the financial assurance
				requirements of this section through the use of letter(s) of credit and/or
				surety bond(s), the owner or operator must also establish a standby trust fund
				that stands ready to receive funds from the surety bond(s) or letter(s) of
				credit unless this requirement is waived by the Department.
A standby trust shall be established that provides for
				  administration and oversight identical to those for an active trust fund.
(iv)
Department as
				Beneficiary
. The Department (or approved trustee for the benefit of the
				Department) must be named as beneficiary of any financial assurance agreement,
				with the right to withdraw funds and to use part or all of the funds in its
				discretion in order to carry out legally required closure, post-closure care,
				and monitoring and all costs related thereto. Withdrawal of any funds must be
				approved in writing by the Department.
(e)
Allowable Assurance
				Mechanisms
. Unless otherwise specified in this section, the owner or
				operator of a solid waste disposal facility that must provide financial
				assurance under subsection A(1) above, must comply with the requirements of 40
				CFR section 258. 70 through 40 CFR 258. 72[ii]as amended up to July 1, 2014.
				The provisions of 40 CFR 258. 70 through 40 CFR 258. 72 and 40 CFR 258. 74(a),
				(b), and (c) effective as of July 1, 2014[iii], are hereby adopted and
				incorporated by reference, provided however that a standby trust fund must also
				be established by the owner or operator of a solid waste disposal facility when
				providing financial assurance through a letter of credit or a surety bond.
Financial assurance may also be provided by the establishment
				  of a reserve account for closure and post-closure care costs established in
				  accordance with the
Internal Revenue Code
. This method shall
				  only be available to owners/operators having book net worth shown on audited
				  financial statements in excess of $50,000,000 and tangible assets in Maine
				  excluding any landfill related assets, having depreciated book value in excess
				  of ten times the projected cost of closure and post-closure costs. This method
				  shall not be available after closure of the facility unless the operator
				  continues business operations in Maine that satisfy the foregoing financial
				  standards. The owner/operator must submit a sworn statement annually in
				  accordance with the annual reporting requirements of this section whether these
				  provisions are met and to provide sufficient information to confirm that sworn
				  statement. If, at any time, the owner/operator no longer meets the reserve
				  account provisions required above, the owner/operator must notify the
				  Department by registered mail within
				  7 days of becoming aware that the
				  standard is no longer met and must provide adequate alternative financial
				  assurance within not more that 23 days after the required notification
				  date.
For a municipally-owned solid waste disposal facility,
				  financial assurance may also be provided by meeting all provisions of 40 CFR
				  258. 74(f)[iv]as amended up to July, 2014.
The owner or operator of a solid waste disposal facility
				  may, subject to Department approval, satisfy the requirements of this
				  subsection by establishing more than one financial assurance mechanism per
				  facility. Each mechanism must comply with the provisions of this section except
				  that it is the combination of these mechanisms, rather than a single mechanism,
				  which must provide financial assurance in an amount at least equal to the total
				  cost of closure and post-closure care.