North Dakota Administrative Code › Title 33 - State Department of Health › Article 33-24 - Hazardous Waste Management › Chapter 33-24-05 - Standards for Treatment, Storage, and Disposal Facilities and for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities › FINANCIAL REQUIREMENTS › Section 33-24-05-77 - Financial assurance for closure and postclosure care

Current through Supplement No. 393, July, 2024
In accordance with section
					 33-24-05-74, an owner or operator
					 of each facility shall establish financial assurance for closure and
					 postclosure of the facility. The owner or operator of a hazardous waste
					 management unit subject to the postclosure requirements of section
					 33-24-05-76 shall establish
					 financial assurance for postclosure care in accordance with the approved
					 postclosure plan for the facility sixty days prior to the initial receipt of
					 hazardous waste or the effective date of the regulations, whichever is later.
					 The owner or operator shall choose from the options as specified in subsections
					 1 through 6.
1.
Closure and
				  postclosure trust fund.
a. An owner or
				  operator may satisfy the requirements of this section by establishing a closure
				  and postclosure trust fund which conforms to the requirements of this
				  subsection and submitting an originally signed duplicate of the trust agreement
				  to the department.
An owner or operator of the new facility shall submit the
					 originally signed duplicate of the trust agreement to the department at least
					 sixty days before the day on which hazardous waste is first received for
					 treatment, storage, or disposal. The trustee must be an entity which has the
					 authority to act as a trustee in this state and whose trust operations are
					 regulated and examined by a federal agency or by the state department of
					 financial institutions.
b.
				  The wording of the trust agreement must be identical to the wording specified
				  in subdivision a of subsection 1 of section
				  33-24-05-81 and the trust
				  agreement must be accompanied by a formal certification of acknowledgment (for
				  example see subdivision b of subsection 1 of section
				  33-24-05-81). Schedule A of the
				  trust agreement must be updated within sixty days after a change in the amount
				  of the current closure and postclosure cost estimate covered by the
				  agreement.
c. Payments into the
				  trust fund must be made annually by the owner or operator over the term of the
				  initial hazardous waste permit or over the remaining operating life of the
				  facility as estimated in the closure plan, whichever period is shorter; this
				  period is hereinafter referred to as the "pay-in period". The payments into the
				  trust fund must be made as follows:
(1) For a
				  new facility the first payment must be made before the initial receipt of
				  hazardous waste for treatment, storage, or disposal. A receipt from the trustee
				  for this payment must be submitted by the owner or operator to the department
				  before the initial receipt of hazardous waste. The first payment must be at
				  least equal to the current closure and postclosure cost estimate, except as
				  provided in subsection 7, divided by the number of years in the pay-in period.
				  Subsequent payments must be made no later than thirty days after each
				  anniversary date of the first payment. The amount of each subsequent payment
				  must be determined by this formula:
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.
Where CE is the current closure and postclosure cost
					 estimate, CV is the current value of the trust fund and Y is the number of
					 years remaining in the pay-in period.
(2) If an owner or operator establishes a
				  trust fund as specified in 40 CFR part 265.143(a) or 265.145(a) of the federal
				  hazardous waste regulations and the value of that trust fund is less than the
				  current closure and postclosure cost estimate when a permit is awarded to the
				  facility, the amount of the current closure and postclosure cost estimate still
				  to be paid into the trust fund must be paid in over the pay-in period as
				  defined in subdivision c. Payments must continue to be made no later than
				  thirty days after each anniversary date of the first payment made pursuant to
				  40 CFR part 265. The amount of each payment must be determined by this formula:
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					 here to view image
.
Where CE is the current closure and postclosure cost
					 estimate, CV is the current value of the trust fund and Y is the number of
					 years remaining in the pay-in period.
d. The owner or operator may accelerate
				  payments into the trust fund or the owner or operator may deposit the full
				  amount of the current closure and postclosure cost estimate at the time the
				  fund is established. However, the owner or operator shall 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 subdivision c.
e. If the owner or operator establishes a
				  closure and postclosure trust fund after having used one or more alternate
				  mechanisms specified in this section (or in 40 CFR part 265.143 or 265.145),
				  the first payment must be in at least the amount that the fund would contain if
				  the trust fund were established initially and annual payments were made
				  according to the specifications of subdivision c.
f. After the pay-in period is completed, when
				  the current closure and postclosure cost estimate changes, the owner or
				  operator shall 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 sixty days after the change
				  in the cost estimate shall either deposit an amount into the fund so that its
				  value after the deposit at least equals the amount of the current closure and
				  postclosure cost estimate or obtain other financial assurance as specified in
				  this section to cover the difference.
g. If the value of the trust fund is greater
				  than the total amount of the current closure and postclosure cost estimate, the
				  owner or operator may submit a written request to the department for release of
				  the amount in excess of the current closure and postclosure cost
				  estimate.
h. If an owner or
				  operator substitutes other financial assurance as specified in this section for
				  all or part of the trust fund, the owner or operator may submit a written
				  request to the department for release of the amount in excess of the current
				  closure and postclosure cost estimate covered by the trust fund.
i. Within sixty days after receiving a
				  request from the owner or operator for release of funds as specified in
				  subdivision g or h, the department will instruct the trustee to release to the
				  owner or operator such funds as the department specifies in writing.
j. During the period of postclosure care, the
				  department may approve a release of funds if the owner or operator demonstrates
				  to the department that the value of the trust fund exceeds the remaining cost
				  of the postclosure care.
k. After
				  beginning partial or final closure or during the postclosure care period, or
				  both, an owner or operator or any other person authorized to perform partial or
				  final closure or postclosure activities may request reimbursement for
				  expenditures incurred during these activities by submitting itemized bills to
				  the department. The owner or operator may request reimbursements for partial
				  closure only if sufficient funds are remaining in the trust fund to cover the
				  maximum cost of closing the facility over its remaining operating life. Within
				  sixty days after receiving bills for partial or final closure or postclosure
				  activities, the department will determine whether the expenditures are in
				  accordance with the closure or postclosure plans or otherwise justified and if
				  so, the department will instruct the trustee to make reimbursement in such
				  amounts as the department specifies in writing. If the department has reason to
				  believe that the cost of closure will be significantly greater than the value
				  of the trust fund, the department may withhold reimbursement of such amounts as
				  the department deems prudent until the department determines in accordance with
				  subsection 9 that the owner or operator is no longer required to maintain
				  financial assurance for final closure. If the department does not instruct the
				  trustee to make such reimbursements, the department will provide the owner or
				  operator with a detailed written statement of reasons.
l. The department will agree to termination
				  of the trust when:
(1) An owner or operator
				  substitutes alternate financial assurance as specified in this section;
				  or
(2) The department releases the
				  owner or operator from the requirements of this subsection in accordance with
				  subsection 9.