N.Y. Comp. Codes R. & Regs. tit. 6 § 383-6.4

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

Section 383-6.4 - Low-level radioactive waste fund

(a) Required trusts. The permittee must establish three separate trusts which conform to the requirements of this section. The following trusts will be collectively referred to in these regulations as the low-level radioactive waste fund (LLRW Fund):

(1) the closure, post-closure, and institutional control trust must be established by the permittee to provide financial assurance for costs of implementing the closure plan, the post- closure plan, and the institutional control plan;

(2) the remedial action/third-party compensation trust (operation, closure, post-closure periods) must be established by the permittee to provide financial assurance during the operation, closure, and post-closure periods of the land disposal facility for the remediation of failures and for third-party compensation for personal injury and property damage caused by the operation of the land disposal facility; and

(3) the remedial action/third-party compensation trust (institutional control period) must be established by the permittee to provide financial assurance during the institutional control period for the remediation of failures and for third-party compensation for personal injury and property damage caused by the operation of the land disposal facility.

(b) Establishment of the trusts.

(1) The permittee must appoint the trustee(s) to supervise and manage each of the three trusts constituting the low-level radioactive waste fund. The initial and any subsequent appointment of the trustee(s) is subject to the prior written approval of the department. Each trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency. The trustee's duties are limited to the duties set forth in subdivision (c) of this section and in the instrument required pursuant to section 383-6.12(a) of this Subpart.

(2) At least 60 days prior to the initial receipt of waste at the land disposal facility, the permittee must execute a trust agreement with the wording identical to the wording required by section 383-6.12(a) of this Subpart and submit it to the department. The trust agreement must be accompanied by a formal certification of acknowledgment, as required by section 383-6.12(a) of this Subpart. The permittee must submit an originally executed duplicate of each trust agreement to the department.

(c) Duties of the trustee.

(1) Each trustee of a trust established pursuant to paragraph (a)(1), (2), or (3) of this section must establish, subject to approval by the department, the pay- in period, pay-in frequency, and pay-in amount to be met by the permittee. The pay-in amount must be based on the determination by the department of the amounts to be held in the fully funded trust(s), as required by subdivision (d) of this section. Each trustee must determine the pay-in amounts for each such trust under that trustee's authority according to the following formula:

Pay-in amount = ((CE - CV)/Y/N)

Where:

CE =for the closure, post-closure, and institutional control trust, the combined cost estimate for implementing the closure plan, the post-closure plan and the institutional control plan; or

CE =for the remedial action/third-party compensation trust (operation, closure, and post-closure periods), the amounts of coverage required by section 383- 6.9(a) of this Subpart for remediation of failures and third-party compensation during the operation, closure, and post-closure periods; or

CE =for the remedial action/third-party compensation trust (institutional control period), the amounts of coverage required by sections 383-6.9(b) and 383-6.10(b) of this Subpart for remediation of failures and third-party compensation during the institutional control period; and

CV =the current value of each trust;

Y =the number of years remaining before land disposal facility closure, but in no event may Y exceed 30 years;

N =the number of payments required per year.

(2) The pay-in period, pay-in frequency, and pay-in amount are subject to approval by the department through permit issuance, modification, or renewal procedures of this Part.

(3) The trustee shall annually, not more than 30 days prior to the anniversary date of the establishment of the trust, determine the value of the trust under the trustee's management and calculate the difference between the current value of the trust and the total amount of financial assurance required by the department pursuant to subdivision (d) of this section. The trustee must submit a written statement, certified by an independent certified public accountant, to the permittee and the department confirming the value of the trust and the result of the calculation within 15 days prior to the anniversary date of the establishment of the trust.

(4) After the department certifies that the post-closure plan has been satisfactorily completed, the trustee of the remedial action/third-party compensation trust (operation, closure, and post-closure periods) must transfer any funds remaining in the remedial action/third-party compensation trust (operation, closure, and post-closure periods), less the expenses for administration of such trust, into the remedial action/third-party compensation trust (institutional control period).

(5) If expenditures are made during the operation period from the closure, post-closure, and institutional control trust, the trustee must:

(i) adjust the pay-in amount to ensure that the trust, when fully funded, contains an amount equal to the sum of the cost estimates established pursuant to sections 383-6.6, 383-6.7, and 383-6.8 of this Subpart;

(ii) adjust the pay-in amount within 30 days of the date the expenditure was made; and

(iii) upon adjustment of the pay-in amount notify the department and permittee of the revised pay-in amount. The revised pay-in amount is subject to approval of the department.

(6) If expenditures are made during the operation period from the remedial action/third-party compensation trust (operation, closure, and post-closure periods), the trustee must:

(i) adjust the pay-in amount to ensure that the trust, when fully funded, contains an amount equal to the financial assurance requirements established for such trust by sections 383-6.9(a) and 383-6.10(a) of this Subpart;

(ii) adjust the pay-in amount within 30 days of the date the expenditure was made; and

(iii) upon adjustment of the pay-in amount notify the department and the permittee of the revised pay-in amount. The revised pay-in amount is subject to approval by the department.

(d) Payments into the trusts.

(1) The department must establish and provide written notice to the permittee of the amount each fully funded trust must contain. The department must specify this amount in the permit, subject to the permit modification procedures of this Title.

(2) The department will establish the amount that each fully funded trust must contain based on:

(i) the cost estimates approved by the department and provided pursuant to sections 383-6.6, 383-6.7, and 383-6.8 of this Subpart; and

(ii) the coverage requirements of sections 383-6.9 and 383-6.10 of this Subpart.

(3) The permittee must make payments into the trusts of the LLRW fund. The amount of such payments must be at least equal to the amount calculated by the trustee(s) of the trusts, established by subdivision (a) of this section, in accordance with the requirements of subdivision (c) of this section.

(e) Payments from the trusts.

(1) Payments for implementation of the closure plan, post-closure plan, and institutional control plan.

(i) The permittee may request reimbursement for the costs of implementing the closure plan, the post-closure plan, and the institutional control plan.

(a) Reimbursement requests must be submitted to the trustee of the closure, post-closure, and institutional control trust, with a copy to the department.

(b) Within 60 days after receiving a copy of the reimbursement request for costs of implementing the closure, post-closure and/or institutional control plans, the commissioner will instruct the trustee of the closure, post-closure, and institutional control trust to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the expenditures are in accordance with the approved closure, post-closure, or institutional control plan, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursement, the commissioner will provide the permittee with a detailed written statement of reasons.

(c) The trustee must issue payments only upon receipt of a written determination from the department:

(1) specifying the amount of such payment;

(2) certifying that the activities for which the permittee is seeking payment were executed in accordance with the approved closure plan, post-closure plan, or institutional control plan; and

(3) verifying that any other applicable terms and conditions of the permit have been met.

(d) Payments to the permittee for the costs of implementing the closure plan, post-closure plan, or institutional control plan must be made only from the closure, post-closure, and institutional control trust.

(2) Payments for the costs of remediation of failures.

(i) The permittee may request reimbursement for the costs of remedial action during the operation, closure, or post-closure periods.

(a) Reimbursement requests must be submitted to the trustee of the remedial action/third-party compensation trust (operation, closure, and post-closure periods), with a copy to the department.

(b) Within 60 days after receiving a copy of the reimbursement request for costs of remedial action during the operation, closure or post-closure periods the commissioner will instruct the trustee of the remedial action/third-party compensation trust (operation, closure, and post-closure periods) to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the expenditures are for activities completed to the satisfaction of the department, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursement, the commissioner will provide the permittee with a detailed written statement of reasons.

(c) The trustee must issue payments only upon receipt of a written determination from the department:

(1) specifying the amount of such payment; and

(2) certifying that the activities for which the permittee is seeking payment were completed to the satisfaction of the department.

(d) Payments to the permittee for the costs of remedial action during the operation, closure, or post-closure periods must be made only from the remedial action/third-party compensation trust (operation, closure, and post-closure periods).

(ii) The permittee may request reimbursement for the costs of remedial action during the institutional control period.

(a) Reimbursement requests must be submitted to the trustee of the remedial action/third-party compensation trust (institutional control period), with a copy to the department.

(b) Within 60 days after receiving a copy of the reimbursement request for costs of remedial action during the operation, closure or post-closure periods the commissioner will instruct the trustee of the remedial action/third-party compensation trust (institutional control periods) to make reimbursements in those amounts the commissioner specifies in writing, if the commissioner determines that the expenditures are for activities completed to the satisfaction of the department, or otherwise justified. If the commissioner does not instruct the trustee to make reimbursement, the commissioner will provide the permittee with a detailed written statement of reasons.

(c) The trustee must issue payments only upon receipt of a written determination from the department:

(1) specifying the amount of such payment; and

(2) certifying that the activities for which the permittee is seeking payment were completed to the satisfaction of the department.

(d) Payments to the permittee for the costs of remedial action during the operation, closure, or post-closure periods must be made only from the remedial action/third-party compensation trust (institutional control period).

(3) Payments for the costs of third-party compensation.

(i) The permittee may request reimbursement for the costs of judgments, settlements, or releases of third party claims for which a settlement or release has been entered into or an action has commenced during the operation, closure, or post-closure periods.

(a) Reimbursement requests must be submitted to the trustee of the remedial action/third-party compensation trust (operation, closure, and post-closure periods), with a copy to the department.

(b) The trustee must release payment for such expenditures only upon receipt of the documentation required by the terms of the trust agreement.

(c) Payments for the costs of third-party judgments, settlements, or releases during the operation period, closure period, or post closure period must be made only from the remedial action/third-party compensation trust (operation, closure, and post-closure periods).

(ii) The permittee may request reimbursement for the costs ofjudgements, settlements, or releases of third party claims for which a settlement or release has been entered into or an action has been commenced during the institutional control period.

(a) Reimbursement requests must be submitted to the trustee of the remedial action/third-party compensation trust (institutional control period).

(b) The trustee must approve payments for such expenditures upon receipt of the documentation required by the terms of the trust agreement.

(c) Payments for the costs of third-party judgments, settlements, or releases during the institutional control period must be made only from the remedial action/third-party compensation trust (institutional control period).

(f) General restrictions.

(1) The assets of any of the trusts established pursuant to subdivision (a) of this section may not be used to pay legal defense costs of the permittee for claims against the permittee arising out of the operation of the land disposal facility.

(2) Except as provided by paragraph (c)(4) of this section, the transfer of assets between or among any such trusts established pursuant to subdivision (a) of this section is prohibited.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 383-6.4