New Mexico Administrative Code › Title 20 - ENVIRONMENTAL PROTECTION › Chapter 9 - SOLID WASTE › Part 10 - FINANCIAL ASSURANCE › Section 20.9.10.14 - TRUST FUND

Current through Register Vol. 35, No. 13, July 16, 2024
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.