N.Y. Comp. Codes R. & Regs. tit. 6 § 383-6.3

Current through Register Vol. 46, No. 25, June 18, 2024

Section 383-6.3 - General requirements

(a) Costs that must be covered. Every permittee must establish and maintain financial assurance to meet the following:

(1) costs of all permitted activities during the pre-closure period;

(2) costs, estimated in accordance with sections 383-6.6, 383-6.7 and 383-6.8 of this Subpart, of implementing the closure plan, post-closure plan, and institutional control plan; and

(3) coverage requirements, in accordance with sections 383-6.9 and 383-6.10 of this Subpart, for remediation of failures and for personal injury and property damage to third parties caused by the operation of the land disposal facility.

(b) Documentation the applicant must provide. Every applicant must provide the department with a financial assurance plan as part of a complete permit application. The financial assurance plan must be prepared in accordance with sections 383-6.3 through 383-6.12 of this Subpart and must include all of the items specified in paragraphs (1) through (4) of this subdivision.

(1) Pre-closure period. The financial assurance plan for the pre-closure period must include documentation demonstrating that the applicant either possesses the necessary funds, or has reasonable assurance acceptable to the department of obtaining the necessary funds, or a combination of the two, to cover the estimated costs of conducting all permitted activities, including, but not limited to, the costs of design, construction, operation, disposal, safety planning, and monitoring and maintenance during the pre-closure period.

(2) Closure and monitoring and maintenance (closure, post-closure, and institutional control periods). The financial assurance plan for the closure, the post-closure and the institutional control periods must include the following documentation:

(i) a cost estimate, in current dollars and prepared pursuant to section 383- 6.6 of this Subpart, for implementing the closure plan;

(ii) a cost estimate, in current dollars and prepared pursuant to section 383- 6.7 of this Subpart, for implementing the post-closure plan;

(iii) a cost estimate, in current dollars and prepared pursuant to section 383- 6.8 of this Subpart, for implementing the institutional control plan;

(iv) the name and address of the applicant's preferred choice, and a recommended alternate, for the trustee of the closure, post-closure, and institutional control trust, established pursuant to section 383-6.4(a)(1) of this Subpart, and documentation that the trustee meets the requirements of section 383-6.4(b)(1) of this Subpart;

(v) an estimate of the total amount of funds to be accumulated in the closure, post-closure, and institutional control trust established pursuant to section 383-6.4 of this Subpart;

(vi) an unexecuted copy of the proposed trust agreement, as required by section 383-6.4(b)(2) of this Subpart, and evidence of commitment from the proposed trustee that the trustee intends to enter into such trust agreement with the applicant;

(vii) a statement specifying the alternate financial assurance method(s) or instrument(s), allowed pursuant to section 383-6.5(m) of this Subpart, that the applicant proposes to use for meeting the requirements of section 383-6.5(a) of this Subpart;

(viii) an unexecuted copy of each proposed alternate financial assurance method or instrument;

(ix) a statement issued by an independent certified public accountant demonstrating that the alternate financial assurance method(s) or instrument(s) proposed by the applicant provides the level of coverage required by section 383-6.5(a) of this Subpart; and

(x) evidence of commitment from the provider(s) of the proposed alternate financial assurance instrument(s) assuring that such instrument(s) will be given to the applicant in the amount specified in the financial assurance plan in conformance with terms of any permit issued by the department to the applicant for a land disposal facility.

(3) Remedial action/third-party compensation (operation, closure, and post-closure periods). The financial assurance plan for remediation of failures and third-party compensation during the operation, closure, and post-closure periods must include the following documentation:

(i) the proposed coverage levels, in current dollars and prepared pursuant to sections 383-6.9 and 383-6.10 of this Subpart, for the costs of remediation of failures and third-party compensation during the operation, closure, and post-closure periods;

(ii) the name and address of the applicant's preferred choice, and recommended alternate, for the trustee of the remedial action/third-party compensation (operation, closure, and post-closure periods). Trust and documentation that the trustee meets the requirements of section 383-6.4(b)(1) of this Subpart;

(iii) a statement specifying the alternate financial assurance method(s) or instrument(s), allowed under section 383-6.5(m) of this Subpart, that the applicant proposes to use for meeting the requirements of section 383-6.5(c) of this Subpart;

(iv) an unexecuted copy of each proposed alternate financial assurance method or instrument;

(v) a statement issued by an independent certified public accountant demonstrating that the alternate financial assurance method(s) or instrument(s) proposed by the applicant meet(s) the requirements of section 383-6.5(c) of this Subpart; and

(vi) evidence of commitment from the provider(s) of the proposed alternate financial assurance instrument(s) assuring that such instrument(s), will be given to the applicant in the amount specified in the financial assurance plan in conformance with the terms of any permit issued by the department to the applicant for a land disposal facility.

(4) Remedial action/third-party compensation (institutional control period). The financial assurance plan for remediation of failures and third-party compensation during the institutional control period must include the following documentation:

(ii) the name and address of the applicant's preferred choice, and a recommended alternate, for the trustee of the remedial action/third-party compensation (institutional control period) trust and documentation that the trustee meets the requirements of section 383-6.4(b)(1) of this Subpart;

(iv) an unexecuted copy of each proposed alternate financial assurance method or instrument;

(v) a statement issued by an independent certified public accountant demonstrating that the alternate financial assurance instrument(s) proposed by the applicant meet(s) the requirements of section 383-6.5(e) of this Subpart; and

(vi) evidence of commitment from the provider(s) of the proposed alternate financial assurance method(s) or instrument(s) assuring that such method(s) or instrument(s), at the value specified in the financial assurance plan, will be given to the applicant in conformance with the terms of any permit issued by the department to the applicant for a land disposal facility.

(c) Submission of the financial assurance plan. The financial assurance plan must be submitted for review and approval by the department as part of a permit application for a land disposal facility. The department will review the financial assurance plan to insure the adequacy of the financial assurance methods or instruments. Every permit issued by the department for a land disposal facility must include conditions requiring the permittee to comply with the financial assurance plan approved by the department.

(d) Documentation the permittee must provide. The financial assurance plan must be reviewed and approved by the department annually. The permittee must annually submit an adjusted financial assurance plan to the department, no later than 90 days prior to the anniversary date of the issuance of the permit, except in the year when such permit expires. In the year the permit expires, the permittee must submit an adjusted financial assurance plan as part of the permit renewal application. The adjusted financial assurance plan must include all the information specified in subdivision (b) of this section in addition to the following:

(1) a statement of current value of:

(i) the closure, post-closure, and institutional control trust, established pursuant to section 383-6.4(a)(1) of this Subpart;

(ii) the remedial action/third-party compensation trust (operation, closure, and post- closure periods), established pursuant to section 383-6.4(a)(2) of this Subpart; and

(iii) the remedial action/third-party compensation trust (institutional control period), established pursuant to section 383-6.4(a)(3) of this Subpart;

(2) a proposed schedule of payments, calculated in accordance with section 383- 6.4(c) of this Subpart, to each such trust for the year beginning on the anniversary date of the issuance of the permit by the department for the land disposal facility;

(3) documentation issued by an independent certified public accountant demonstrating that the total amount to be deposited by the permittee into each trust of the LLRW Fund established by section 383-6.4 of this Subpart during the subsequent one-year period will meet the requirements of section 383-6.4 of this Subpart;

(4) documentation issued by an independent certified public accountant demonstrating that the alternate financial assurance method(s) or instrument(s) meet(s) the requirements of section 383-6.5(a), (c), and (e) of this Subpart, including:

(i) a statement of the current value of the alternate financial assurance instruments maintained by the permittee;

(ii) a calculation of the difference between the actual value of each trust, established pursuant to section 383-6.4(a) of this Subpart, and the total amount required for each trust as determined pursuant to section 383-6.4(d) of this Subpart; and

(iii) an estimate of the value of each trust at the next anniversary date of the issuance of the permit by the department for the land disposal facility; and

(5) adjustments adequately reflecting inflation; changes in construction, operation, or monitoring and maintenance costs; changes in the costs of implementing the closure plan, the post-closure plan, and the institutional control plan; changes in the amount of disturbed land; changes in engineering plans, facility technology, and/or facility size; and any portion of the closure plan, post-closure plan, or institutional control plan which has been completed;

(6) adjustments adequately reflecting changes in the nature and volume of low-level radioactive waste involved; any changes in the degree and duration of risk to human health or the environment.

(e) Adjustments to the financial assurance plan. Except where indicated otherwise, the department's review of the financial assurance plan is governed by sections 621.11 and 621.13 of this Title.

(1) Within 30 days following the receipt of the adjusted financial assurance plan the department will review the adjusted financial assurance plan and either approve it or provide the permittee with a written statement of reasons why it will not approve the adjusted financial assurance plan. In the event that the adjusted financial assurance plan is not approved, the permittee must submit a revised adjusted financial assurance plan for the department's review and approval within 30 days of the date of the department's written statement of disapproval.

(2) The department may require the permittee by written notice to revise the financial assurance plan, or any portion thereof, at any time during the pre-closure period of the land disposal facility if the department finds that the amount of financial assurance provided pursuant to the financial assurance plan is insufficient to meet the requirements of paragraphs (a)(1), (2), and (3) of this section. The permittee must submit a revised financial assurance plan to the department within 30 days of receiving such written notice from the department.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 383-6.3