Ohio Administrative Code|Rule 3745-55-43 | Financial assurance for facility closure.

                                                
An owner or operator of each facility shall
		establish financial assurance for closure of the facility. The owner or
		operator shall choose from among the following options:
(A) Closure trust fund.
(1) An owner or operator
			 may satisfy the requirements of this rule by establishing a closure trust fund
			 which conforms to the requirements of paragraph (A) of this rule and submitting
			 an originally signed duplicate of the trust agreement to the director. An owner
			 or operator of a new facility shall send the originally signed duplicate of the
			 trust agreement to the director at least sixty days before the date on which
			 hazardous waste is first received for treatment, storage, or disposal. The
			 trustee shall be an entity which has the authority to act as a trustee and
			 whose trust operations are regulated and examined by a federal or state
			 agency.
(2) The wording of the
			 trust agreement shall be identical to the wording specified in paragraph (A)(1)
			 of rule 3745-55-51 of the Administrative Code and the trust agreement shall be
			 accompanied by a formal certification of acknowledgement. [For example, see
			 paragraph (A)(2) of rule 3745-55-51 of the Administrative Code.] "Schedule
			 A" of the trust agreement shall be updated within sixty days after a
			 change in the amount of the current closure cost estimate covered by the
			 agreement.
(3) Payments to the trust
			 fund shall 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 hereafter referred to as the "pay-in period." The payments
			 into the closure trust fund shall be made as follows:
(a) For a new facility, the first payment shall be made before
				the initial receipt of hazardous waste for treatment, storage, or disposal. A
				receipt from the trustee for this payment shall be submitted by the owner or
				operator to the director before this initial receipt of hazardous waste. The
				first payment shall be at least equal to the current closure cost estimate (see
				rule 3745-55-42 of the Administrative Code) except as provided in paragraph (G)
				of this rule, divided by the number of years in the pay-in period. Subsequent
				payments shall be made no later than thirty days after each anniversary date of
				the first payment. The amount of each subsequent payment shall be determined by
				this formula:
Next payment = (CE - CV) / Y
Where CE is the current closure cost
				estimate, CV is the current value of the trust fund, and Y is the number of
				years remaining in the pay-in period.
(b) If an owner or operator establishes a trust fund as specified
				in paragraph (A) of this rule, and the value of that trust fund is less than
				the current closure cost estimate when a permit is issued to the facility, the
				amount of the current closure cost estimate still to be paid into the trust
				fund shall be paid in over the pay-in period as described in paragraph (A)(3)
				of this rule. Payments shall continue to be made no later than thirty days
				after each anniversary date of the first payment made pursuant to Chapters
				3745-65 to 3745-69 and 3745-256 of the Administrative Code. The amount of each
				payment must be determined by this formula:
Next payment = (CE - CV) / Y
Where CE is the current closure cost
				estimate, CV is the current value of the trust fund, and Y is the number of
				years remaining in the pay-in period.
(4) The owner or operator
			 may accelerate payments unto the trust fund or the owner or operator may
			 deposit the full amount of the current closure cost estimate at the time the
			 trust fund is established. However, the owner or operator shall maintain the
			 value of the trust fund at no less than the value the trust fund would have if
			 annual payments were made as specified in paragraph (A)(3) of this
			 rule.
(5) If the owner or
			 operator establishes a closure trust fund after having used one or more
			 alternate mechanisms specified in this rule or in rule 3745-66-43 of the
			 Administrative Code, the owner's or operator's first payment shall be
			 in at least the amount that the trust fund would contain if the trust fund were
			 established initially and annual payments made according to paragraph (A)(3) of
			 this rule and paragraph (A) of rule 3745-66-43 of the Administrative Code, as
			 applicable.
(6) After the pay-in
			 period is completed, whenever the current closure 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 trust fund is
			 less than the amount of the new estimate, the owner or operator, within sixty
			 days after the change in the cost estimate, either shall deposit an amount into
			 the trust fund so that the value of the trust fund after this deposit at least
			 equals the amount of the current closure cost estimate, or obtain other
			 financial assurance as specified in this rule to cover the
			 difference.
(7) If the value of the
			 trust fund is greater than the total amount of the current closure cost
			 estimate, the owner or operator may submit a written request to the director
			 for release of the amount in excess of the current closure cost
			 estimate.
(8) If an owner or
			 operator substitutes other financial assurance as specified in this rule for
			 all or part of the trust fund, the owner or operator may submit a written
			 request to the director for release of the amount in excess of the current
			 closure cost estimate covered by the trust fund.
(9) Within sixty days
			 after receiving a request from the owner or operator for release of funds as
			 specified in paragraph (A)(7) or (A)(8) of this rule, the director will
			 instruct the trustee to release to the owner or operator such funds as the
			 director specifies in writing.
(10) After beginning
			 partial or final closure, an owner or operator or another person authorized to
			 conduct partial or final closure may request reimbursement for partial or final
			 closure expenditures by submitting itemized bills to the director. The owner or
			 operator may request reimbursements for partial closure only if sufficient
			 funds are remaining in the trust fund to cover the maximum costs of closing the
			 facility over the remaining operating life of the facility. Within sixty days
			 after receiving bills for partial or final closure activities, the director
			 will determine whether the partial or final closure expenditures are in
			 accordance with the approved closure plan or are otherwise justified, and if
			 so, the director will instruct the trustee to make reimbursement in such
			 amounts as the director specifies in writing. If the director has reason to
			 believe that the maximum cost of closure over the remaining operating life of
			 the facility will be significantly greater than the value of the trust fund,
			 the director may withhold reimbursement of such amounts as the director deems
			 prudent until the director determines, in accordance with paragraph (I) of this
			 rule, that the owner or operator is no longer required to maintain financial
			 assurance for final closure of the facility. If the director does not instruct
			 the trustee to make such reimbursements, the director will provide the owner or
			 operator with a detailed written statement of reasons.
(11) The director will
			 agree to termination of the trust when either:
(a) The owner or operator substitutes alternate financial
				assurance as specified in this rule.
(b) The director releases the owner or operator from the
				requirements of this rule in accordance with paragraph (I) of this
				rule.
(B) Surety bond guaranteeing payment into
		  a closure trust fund.
(1) An owner or operator
			 may satisfy the requirements of this rule by obtaining a surety bond which
			 conforms to the requirements of paragraph (B) of this rule and submitting the
			 bond to the director. An owner or operator of a new facility shall submit the
			 surety bond to the director at least sixty days before the date on which
			 hazardous waste is first received for treatment, storage, or disposal. The bond
			 shall be effective before this initial receipt of hazardous waste. At a
			 minimum, the surety company issuing the bond shall be among those listed as
			 acceptable sureties on federal bonds in "Circular 570" of the U.S.
			 department of the treasury.
[Comment: "Circular 570" is published
			 in the Federal Register annually on July first. Interim changes in the circular
			 are also published in the Federal Register.]
(2) The wording of the
			 surety bond shall be identical to the wording specified in paragraph (B) of
			 rule 3745-55-51 of the Administrative Code.
(3) The owner or operator
			 who uses a surety bond to satisfy the requirements of this rule also shall
			 establish a standby trust fund by the time the bond is obtained. 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
			 director. This standby trust fund shall meet the requirements specified in
			 paragraph (A) of this rule, except that:
(a) An originally signed duplicate of the trust agreement shall
				be submitted to the director with the surety bond; and
(b) Until the standby trust fund is funded pursuant to this rule,
				the following are not required:
(i) Payments into the
				  trust fund as specified in paragraph (A) of this rule;
(ii) Updating of
				  "Schedule A" of the trust agreement [see paragraph (A) of rule
				  3745-55-51 of the Administrative Code] to show current closure cost
				  estimates;
(iii) Annual valuations
				  as required by the trust agreement; and
(iv) Notices of
				  nonpayment as required by the trust agreement.
(4) The bond shall
			 guarantee that the owner or operator will:
(a) 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
(b) Fund the standby trust fund in an amount equal to the penal
				sum within fifteen days after an order to begin final closure in accordance
				with rules 3745-55-10 to 3745-55-20 of the Administrative Code is issued by the
				director, or by an Ohio court, or other court of competent jurisdiction, or by
				a U.S. district court, or within fifteen days after issuance of a notice or
				revocation of the permit by the director; or
(c) Provide alternate financial assurance as specified in this
				rule, and obtain the director's written approval of the assurance
				provided, within ninety days after receipt by both the owner or operator and
				the director 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. After a determination
			 by the director that the owner or operator has failed to perform final closure
			 in accordance with the approved closure plan and other permit requirements when
			 required to do so, under the terms of the bond the surety will perform final
			 closure as guaranteed by the bond, or will deposit the amount of the penal sum
			 into the standby trust fund.
(6) The penal sum of the
			 bond shall be in an amount at least equal to the current closure cost estimate
			 (see rule 3745-55-42 of the Administrative Code) except as provided in
			 paragraph (G) of this rule.
(7) Whenever the current
			 closure cost estimate increases to an amount greater than the penal sum, the
			 owner or operator, within sixty days after the increase, either shall cause the
			 penal sum to be increased to an amount at least equal to the current closure
			 cost estimate and submit evidence of such increase to the director, or shall
			 obtain other financial assurance as specified in this rule to cover the
			 increase. Whenever the current closure cost estimate decreases, the penal sum
			 may be reduced to the amount of the current closure cost estimate following
			 written approval by the director.
(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 director. Cancellation may
			 not occur, however, during the one hundred twenty days beginning on the date of
			 receipt of the notice of cancellation by both the owner or operator and the
			 director, as evidenced by the return receipts.
(9) The owner or operator
			 may cancel the bond if the director has given prior written consent based on
			 the director's receipt of evidence of alternate financial assurance as
			 specified in this rule.
(C) Surety bond guaranteeing performance
		  of closure.
(1) An owner or operator
			 may satisfy the requirements of this rule by obtaining a surety bond which
			 conforms to the requirements of paragraph (C) of this rule and submitting the
			 bond to the director. An owner or operator of a new facility shall submit the
			 bond to the director at least sixty days before the date on which hazardous
			 waste is first received for treatment, storage, or disposal. The bond shall be
			 effective before this initial receipt of hazardous waste. At a minimum, the
			 surety company issuing the bond shall be among those listed as acceptable
			 sureties on federal bonds in "Circular 570" of the U.S. department of
			 the treasury.
[Comment: "Circular 570" is published
			 in the Federal Register annually on July first. Interim changes in the circular
			 are also published in the Federal Register.]
(2) The wording of the
			 surety bond shall be identical to the wording specified in paragraph (C) of
			 rule 3745-55-51 of the Administrative Code.
(3) The owner or operator
			 who uses a surety bond to satisfy the requirements of this rule also shall
			 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 director. This standby trust shall
			 meet the requirements specified in paragraph (A) of this rule, except
			 that:
(a) An originally signed duplicate of the trust agreement shall
				be submitted to the director with the surety bond; and
(b) Unless the standby trust fund is funded pursuant to this
				rule, the following are not required:
(i) Payments into the
				  trust fund as specified in paragraph (A) of this rule;
(ii) Updating of
				  "Schedule A" of the trust agreement [see paragraph (A) of rule
				  3745-55-51 of the Administrative Code] to show current closure cost
				  estimates;
(iii) Annual valuations
				  as required by the trust agreement; and
(iv) Notices of
				  nonpayment as required by the trust agreement.
(4) The bond shall
			 guarantee that the owner or operator will either:
(a) Perform final closure in accordance with the closure plan and
				other requirements of the permit for the facility whenever required to do
				so.
(b) Provide alternate financial assurance as specified in this
				rule, and obtain the director's written approval of the assurance
				provided, within ninety days after receipt by both the owner or operator and
				the director 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. After a determination
			 pursuant to Chapter 3734. of the Revised Code or Section 3008 of RCRA that the
			 owner or operator has failed to perform final closure in accordance with the
			 approved closure plan and other permit requirements when required to do so,
			 under the terms of the bond the surety will perform final closure as guaranteed
			 by the bond or will deposit the amount of the penal sum into the standby trust
			 fund.
(6) The penal sum of the
			 bond shall be in an amount at least equal to the amount of the current closure
			 cost estimate (see rule 3745-55-42 of the Administrative Code).
(7) Whenever the current
			 closure cost estimate increases to an amount greater than the amount of the
			 penal sum, the owner or operator, within sixty days after the increase, either
			 shall cause the penal sum of the bond to be increased to an amount at least
			 equal to the current closure cost estimate and submit evidence of such increase
			 to the director, or shall obtain other financial assurance as specified in this
			 rule. Whenever the current closure cost estimate decreases, the penal sum may
			 be reduced to the amount of the current closure cost estimate following written
			 approval by the director.
(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 director. Cancellation may
			 not occur, however, during the one hundred twenty days beginning on the date of
			 receipt of the notice of cancellation by both the owner or operator and the
			 director, as evidenced by return receipts.
(9) The owner or operator
			 may cancel the bond if the director has given prior written consent. The
			 director will provide such written consent when either:
(a) An owner or operator provides alternate financial assurance
				as specified in this rule.
(b) The director releases the owner or operator from the
				requirements of this rule in accordance with paragraph (I) of this
				rule.
(10) The surety will not
			 be liable for deficiencies in the performance of closure by the owner or
			 operator after the director releases the owner or operator from the
			 requirements of this rule in accordance with paragraph (I) of this
			 rule.
(D) Closure letter of
		  credit.
(1) An owner or operator
			 may satisfy the requirements of this rule by obtaining an irrevocable standby
			 letter of credit which conforms to the requirements of paragraph (D) of this
			 rule and by submitting the letter to the director. An owner or operator of a
			 new facility shall submit the letter of credit to the director at least sixty
			 days before the date on which hazardous waste is first received for treatment,
			 storage, or disposal. The letter of credit shall be effective before this
			 initial receipt of hazardous waste. The issuing institution shall 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 shall be identical to the wording specified in paragraph (D)
			 of rule 3745-55-51 of the Administrative Code.
(3) An owner or operator
			 who uses a letter of credit to satisfy the requirements of this rule also shall
			 establish a standby trust fund. Under the terms of the letter of credit, all
			 amounts paid pursuant to a draft by the director will be deposited by the
			 issuing institution directly into the standby trust fund in accordance with
			 instruction from the director. This standby trust fund shall meet the
			 requirements of the trust fund specified in paragraph (A) of this rule, except
			 that:
(a) An originally signed duplicate of the trust agreement shall
				be submitted to the director with the letter of credit; and
(b) Unless the standby trust fund is funded pursuant to this
				rule, the following are not required:
(i) Payments into the
				  trust fund as specified in paragraph (A) of this rule;
(ii) Updating of
				  "Schedule A" of the trust agreement [see paragraph (A) of rule
				  3745-55-51 of the Administrative Code] to show current closure
				  estimates;
(iii) Annual valuations
				  as required by the trust agreement; and
(iv) Notices of
				  nonpayment as required by the trust agreement.
(4) The letter of credit
			 shall 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
			 U.S. EPA identification number, name and address of the facility, and the
			 amount of funds assured for closure of the facility by the letter of
			 credit.
(5) The letter of credit
			 shall be irrevocable and issued for a period of at least one year. The letter
			 of credit shall provide that the expiration date will be automatically extended
			 for a period of at least one year unless, at least one hundred twenty days
			 before the current expiration date, the issuing institution notifies both the
			 owner or operator and the director by certified mail of a decision not to
			 extend the expiration date. Under the terms of the letter of credit, the one
			 hundred twenty days begin on the date when both the owner or operator and the
			 director have received the notice, as evidenced by the return
			 receipts.
(6) The letter of credit
			 shall be issued in an amount at least equal to the current closure cost
			 estimate, except as provided in paragraph (G) of this rule.
(7) Whenever the current
			 closure cost estimate increases to an amount greater than the amount of the
			 credit, the owner or operator, within sixty days after the increase, either
			 shall cause the amount of the credit to be increased so that the amount of the
			 credit at least equals the current closure cost estimate and submit evidence of
			 such increase to the director, or shall obtain other financial assurance as
			 specified in this rule to cover the increase. Whenever the current closure cost
			 estimate decreases, the amount of the letter of credit may be reduced to the
			 amount of the current closure cost estimate after written approval by the
			 director.
(8) After a determination
			 pursuant to Chapter 3734. of the Revised Code or Section 3008 of the RCRA that
			 the owner or operator has failed to perform final closure in accordance with
			 the closure plan and other permit requirements when required to do so, the
			 director may draw on the letter of credit.
(9) If the owner or
			 operator does not establish alternate financial assurance as specified in this
			 rule and obtain written approval of such alternate assurance from the director
			 within ninety days after the receipt by both the owner or operator and the
			 director of a notice from the issuing institution that the issuing institution
			 decided not to extend the letter of credit beyond the current expiration date,
			 the director will draw on the letter of credit. The director may delay the
			 drawing if the issuing institution grants an extension of the term of the
			 credit. During the last thirty days of any such extension, the director will
			 draw on the letter of credit if the owner or operator has failed to provide
			 alternate financial assurance as specified in this rule and obtain written
			 approval of such assurance from the director.
(10) The director will
			 return the letter of credit to the issuing institution for termination when
			 either:
(a) The owner or operator substitutes alternate financial
				assurance as specified in this rule; or
(b) The director releases the owner or operator from the
				requirements of this rule in accordance with paragraph (I) of this
				rule.
(E) Closure insurance.
(1) An owner or operator
			 may satisfy the requirements of this rule by obtaining closure insurance which
			 conforms to the requirements of paragraph (E) of this rule and submitting a
			 certificate of such insurance to the director. An owner or operator of a new
			 facility shall submit the certificate of insurance to the director at least
			 sixty days before the date on which hazardous waste is first received for
			 treatment, storage, or disposal. The insurance shall be effective before this
			 initial receipt of hazardous waste. At a minimum, the insurer shall 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 shall be identical to the wording specified in
			 paragraph (E) of rule 3745-55-51 of the Administrative Code.
(3) The closure insurance
			 policy shall be issued for a face amount at least equal to the current closure
			 cost estimate, except as provided in paragraph (G) of this rule. 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 closure insurance
			 policy shall guarantee that funds will be available to close the facility
			 whenever final closure occurs. The policy also shall guarantee that once final
			 closure 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
			 director, to such party or parties as the director specifies.
(5) After beginning
			 partial or final closure, an owner or operator or any other person authorized
			 to conduct closure may request reimbursement for closure expenditures by
			 submitting itemized bills to the director. The owner or operator may request
			 reimbursement for partial closure only if the remaining value of the policy is
			 sufficient to cover the maximum costs of closing the facility over the
			 remaining operating life of the facility. Within sixty days after receiving
			 bills for closure activities, the director will determine whether the partial
			 or final closure expenditures are in accordance with the approved closure plan
			 or otherwise justified, and if so, the director will instruct the insurer to
			 make reimbursement in such amounts as the director specifies in writing. If the
			 director has reason to believe that the maximum cost of closure over the
			 remaining operating life of the facility will be significantly greater than the
			 face amount of the policy, the director may withhold reimbursement of such
			 amounts as the director deems prudent until the director determines, in
			 accordance with paragraph (I) of this rule, that the owner or operator is no
			 longer required to maintain financial assurance for final closure of the
			 facility. If the director does not instruct the insurer to make such
			 reimbursements, the director will provide the owner or operator with a detailed
			 written statement of reasons.
(6) The owner or operator
			 shall maintain the policy in full force and effect until the director consents
			 to termination of the policy by the owner or operator as specified in paragraph
			 (E)(10) of this rule. Failure to pay the premium, without substitution of
			 alternate financial assurance as specified in this rule, will constitute a
			 significant violation, warranting such remedy as the director deems necessary.
			 Such violation will be deemed to begin upon receipt by the director 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 shall
			 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 shall
			 provide that the insurer may not cancel, terminate, or fail to renew the policy
			 except for failure to pay the premium. At a minimum, the automatic renewal of
			 the policy shall 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 director.
			 Cancellation, termination, or failure to renew may not occur, however, during
			 the one hundred twenty days beginning with the date of receipt of the notice by
			 both the director 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:
(a) The director deems the facility abandoned; or
(b) The permit is terminated or revoked or a new permit is
				denied; or
(c) Closure is ordered by the director or a U.S. district court
				or other court of competent jurisdiction; or
(d) The owner or operator is named as debtor in a voluntary or
				involuntary proceeding under Title 11 (bankruptcy), U.S. Code; or
(e) The premium due is paid.
(9) Whenever the current
			 closure cost estimate increases to an amount greater than the face amount of
			 the policy, the owner or operator, within sixty days after the increase, either
			 shall cause the face amount to be increased to an amount at least equal to the
			 current closure cost estimate and submit evidence of such increase to the
			 director, or shall obtain other financial assurance as specified in this rule
			 to cover the increase. Whenever the current closure cost estimate decreases,
			 the face amount may be reduced to the amount of the current closure cost
			 estimate after written approval by the director.
(10) The director will
			 give written consent to the owner or operator that the owner or operator may
			 terminate the insurance policy when either:
(a) An owner or operator substitutes alternate financial
				assurance as specified in this rule.
(b) The director releases the owner or operator from the
				requirements of this rule in accordance with paragraph (I) of this
				rule.
(F) Financial test and corporate
		  guarantee for closure.
(1) An owner or operator
			 may satisfy the requirements of this rule by demonstrating that the owner or
			 operator passes a financial test as specified in paragraph (F) of this rule. To
			 pass this test, the owner or operator shall meet the criteria of either
			 paragraph (F)(1)(a) or (F)(1)(b) of this rule.
(a) The owner or operator shall have:
(i) 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
(ii) 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
(iii) Tangible net worth
				  of at least ten million dollars: and
(iv) Assets located in
				  the United States amounting to at least ninety per cent of 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.
(b) The owner or operator shall have:
(i) A current rating for
				  the owner's or operator's 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
(ii) 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
(iii) Tangible net worth
				  of at least ten million dollars; and
(iv) Assets located in
				  the United States amounting to at least ninety per cent of the owner's or
				  operator's 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 rule refers to the cost estimates required to be shown
			 in paragraphs one through four of the letter from the owner's or
			 operator's chief financial officer [paragraph (F) of rule 3745-55-51 of
			 the Administrative Code]. The phrase "current plugging and abandonment
			 cost estimates" as used in paragraph (F)(1) of this rule refers to the
			 cost estimates required to be shown in paragraphs one through four of the
			 letter from the owner's or operator's chief financial officer [see
			 paragraph (F) of rule 3745-55-51 of the Administrative Code].
(3) To demonstrate that
			 the owner or operator meets this test, the owner or operator shall submit the
			 following items to the director:
(a) A letter signed by the owner's or operator's chief
				financial officer and worded as specified in paragraph (F) of rule 3745-55-51
				of the Administrative Code; and
(b) 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
(c) A special report from the owner's or operator's
				independent certified public accountant to the owner or operator stating
				that:
(i) The accountant 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
(ii) In connection with
				  that procedure, no matters came to the accountant's attention which caused
				  the accountant to believe that the specified data should be
				  adjusted.
(4) An owner or operator
			 of a new facility shall submit the items specified in paragraph (F)(3) of this
			 rule to the director at least sixty days before the date on which hazardous
			 waste is first received for treatment, storage, or disposal.
(5) After the initial
			 submittal of items specified in paragraph (F)(3) of this rule, the owner or
			 operator shall send updated information to the director within ninety days
			 after the close of each succeeding fiscal year. This information shall consist
			 of all three items specified in paragraph (F)(3) of this rule.
(6) If the owner or
			 operator no longer meets the requirements of paragraph (F)(1) of this rule, the
			 owner or operator shall send notice to the director of intent to establish
			 alternate financial assurance as specified in this rule. The notice shall be
			 sent by certified mail within ninety 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 shall provide the alternate
			 financial assurance within one hundred twenty days after the end of such fiscal
			 year.
(7) The director, based
			 on a reasonable belief that the owner or operator may no longer meet the
			 requirements of paragraph (F)(1) of this rule, may require reports of financial
			 condition at any time from the owner or operator in addition to those specified
			 in paragraph (F)(3) of this rule. If the director 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 rule, the owner or operator shall
			 provide alternate financial assurance as specified in this rule within thirty
			 days after notification of such a finding.
(8) The director may
			 disallow use of this test on the basis of qualifications in the opinion
			 expressed by the independent certified public accountant in the
			 accountant's report on examination of the owner's or operator's
			 financial statements [see paragraph (F)(3)(b) of this rule]. An adverse opinion
			 or a disclaimer of opinion will be cause for disallowance. The director will
			 evaluate other qualifications on an individual basis. The owner or operator
			 shall provide alternate financial assurance as specified in this rule within
			 thirty days after notification of the disallowance.
(9) The owner or operator
			 is no longer required to submit the items specified in paragraph (F)(3) of this
			 rule when either:
(a) An owner or operator substitutes alternate financial
				assurance as specified in this rule.
(b) The director releases the owner or operator from the
				requirements of this rule in accordance with paragraph (I) of this
				rule.
(10) An owner or operator
			 may meet the requirements of this rule by obtaining a written guarantee. The
			 guarantor shall be the direct or 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 shall meet the
			 requirements for owners or operators in paragraphs (F)(1) to (F)(8) of this
			 rule and shall comply with the terms of the guarantee. The wording of the
			 guarantee shall be identical to the wording specified in paragraph (H) of rule
			 3745-55-51 of the Administrative Code. A certified copy of the guarantee shall
			 accompany the items sent to the director as specified in paragraph (F)(3) of
			 this rule. One of these items shall 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 shall 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 shall describe this "substantial business
			 relationship" with and the value received in consideration of the
			 guarantee. The terms of the guarantee shall provide that:
(a) If the owner or operator fails to perform final closure of a
				facility covered by the corporate guarantee in accordance with the closure plan
				and other permit requirements whenever required to do so, the guarantor will do
				so or establish a trust fund as specified in paragraph (A) of this rule in the
				name of the owner or operator.
(b) 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 director. Cancellation may not occur, however, during the
				one hundred twenty days beginning on the date of receipt of the notice of
				cancellation by both the owner or operator and the director, as evidenced by
				the return receipts.
(c) If the owner or operator fails to provide alternate financial
				assurance as specified in this rule and obtain the written approval of such
				alternate assurance from the director within ninety days after receipt by both
				the owner or operator and the director of a notice of cancellation of the
				corporate guarantee from the guarantor, the guarantor will provide such
				alternative 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 rule 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 shall be as specified in paragraphs (A),
		  (B), (D), and (E) of this rule, except that it is the combination of
		  mechanisms, rather than the single mechanism, which shall provide financial
		  assurance for an amount at least equal to the current closure cost estimate. If
		  an owner or operator uses a trust fund in combination with a surety bond or
		  letter of credit, the owner or operator may use the trust fund as the standby
		  trust fund for the other mechanisms. A single standby trust may be established
		  for two or more mechanisms. The director may use any or all of the mechanisms
		  to provide for closure 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 rule to meet the requirements of this rule for more
		  than one facility. Evidence of financial assurance submitted to the director
		  shall include a list showing, for each facility, the U.S. EPA identification
		  number, name, address, and the amount of funds for closure assured by the
		  mechanism. If the facilities covered by the mechanism are in more than one U.S.
		  EPA region, identical evidence of financial assurance shall be submitted to and
		  maintained with the U.S. EPA regional administrators of all such regions or the
		  directors of state programs in states authorized to administer such programs.
		  The amount of funds available through the mechanism shall 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 closure of any of the facilities covered by the
		  mechanism, the director 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 rule. Within sixty days after receiving certifications
		  from the owner or operator and a qualified professional engineer that final
		  closure has been completed in accordance with the approved closure plan, the
		  director will notify the owner or operator in writing that the owner or
		  operator is no longer required by this rule to maintain financial assurance for
		  closure of the facility, unless the director has reason to believe that final
		  closure has not been in accordance with the approved closure plan. The director
		  will provide the owner or operator a detailed written statement of any such
		  reason to believe that closure has not been in accordance with the approved
		  closure plan.
[Comment 1: The notice releases the owner or
		  operator only from requirements for financial assurance for closure of the
		  facility. The notice does not release the owner or operator from legal
		  responsibility for meeting the closure standards.]
[Comment 2: For dates of non-regulatory government
		publications, publications of recognized organizations and associations,
		federal rules, and federal statutory provisions referenced in this rule, see
		rule 3745-50-11 of the Administrative Code titled "Incorporated by
		reference."]


Last updated September 29, 2021 at 8:51 AM