Section 33-24-05-77 - Financial assurance for closure and postclosure careIn 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: Click 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.
(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: Click 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. 2.Surety bond guaranteeing payment into a closure and postclosure trust fund.a. An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this subsection and submitting the bond to the department. An owner or operator of a new facility must submit the bond to the department at least sixty days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the United States department of treasury and be authorized to do business within this state. If the surety is using reinsurance, a treasury reinsurance form must be submitted with the bond or within forty-five days thereafter. If cosureties are being used, the original bond must reflect that fact.b. The wording of the surety bond must be identical to the wording specified in subsection 2 of section 33-24-05-81.c. The owner or operator who uses a surety bond to satisfy the requirements of this section shall also 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 department. This standby trust fund must meet the requirements specified in subsection 1 except that: (1) An originally signed duplicate of the trust agreement must be submitted to the department with the surety bond; and(2) Until the standby trust fund is funded pursuant to the requirements of this subsection, the following are not required by this chapter:(a) Payments into the trust fund as specified in subsection 1.(b) Updating of schedule A of the trust agreement to show current closure and postclosure cost estimates.(c) Annual evaluations as required by the trust agreement.(d) Notices of nonpayment as required by the trust agreement. d. The bond must guarantee that the owner or operator will:(1) 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;(2) Fund the standby trust fund in an amount equal to the penal sum within fifteen days after an order to begin final closure is issued by the department or a United States district court or other court of competent jurisdiction; or(3) Provide alternate financial assurance as specified in this section and obtain the department's written approval of the assurance provided within ninety days after receipt by both the owner or operator of a notice of cancellation of the bond from the surety.e. 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.f. The penal sum of the bond must be in an amount at least equal to the current closure and postclosure cost estimate, except as provided in subsection 7.g. Whenever the current closure and postclosure cost estimate increases to an amount greater than the penal sum, the owner or operator within sixty days after the increase must either cause the penal sum to be increased to an amount at least equal to the current closure and postclosure cost estimate and submit evidence of such increase to the department or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure and postclosure cost estimate decreases, the penal sum may be reduced to the amount of the current closure and postclosure cost estimate following written approval by the department.h. 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 department. Cancellation may not occur, however, during the one hundred twenty days beginning on the date of receipt of cancellation by both the owner or operator and the department as evidenced by the return receipts.i. The owner or operator may cancel the bond if the department has given prior written consent based on the department's receipt of evidence of alternate financial assurance as specified in this section.3.Surety bond guaranteeing performance of closure and postclosure care.a. An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this subsection and submitting the bond to the department. An owner or operator of a new facility shall submit the bond to the department at least sixty days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those acceptable sureties on federal bonds in Circular 570 of the United States department of treasury and be authorized to do business within the state of North Dakota. If the surety is using reinsurance a treasury reinsurance form must be submitted with the bond or within forty-five days thereafter. If cosureties are being used, the original bond must reflect that fact.b. The wording of the surety bond must be identical to the wording specified in subsection 3 of section 33-24-05-81.c. The owner or operator who uses a surety bond to satisfy the requirements of this section shall also 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 department. This standby trust fund must meet the requirements specified in subsection 1 except that: (1) An originally signed duplicate of the trust agreement must be submitted to the department with the surety bond; and(2) Until the standby trust fund is funded pursuant to the requirements of this subsection, the following are not required by this chapter:(a) Payments into the trust fund as specified in subsection 1.(b) Updating of schedule A of the trust agreement to show current closure and postclosure cost estimates.(c) Annual valuations as required by the trust agreement.(d) Notices of nonpayment as required by the trust agreement. d. The bond must guarantee that the owner or operator will:(1) Perform postclosure care and final closure in accordance with the postclosure and closure plan and other requirements of the permit for the facility when required to do so; or(2) Provide alternate financial assurance as specified in this section and obtain the department's written approval of the assurance provided within ninety days after receipt by both the owner or operator and the department of a notice of cancellation of the bond from the surety.e. 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. Following a determination by the department that the owner or operator has failed to perform postclosure care or final closure in accordance with the closure or postclosure plan and other permit requirements when required to do so, under the terms of the bond the surety will perform the postclosure care or final closure as guaranteed by the bond or will deposit the amount of the penal sum into the standby trust fund.f. The penal sum of the bond must be in an amount at least equal to the current closure or postclosure cost estimate, or both.g. Whenever the current closure or postclosure cost estimate, or both, increases to an amount greater than the penal sum, the owner or operator within sixty days after the increase must either cause the penal sum to be increased to an amount at least equal to the current closure or postclosure cost estimate, or both, and submit evidence of such increase to the department or obtain other financial assurance as specified in this section. Whenever the current closure or postclosure cost estimate, or both, decreases the penal sum may be reduced to the amount of the current closure or postclosure cost estimate, or both, following written approval by the department.h. During the period of postclosure care, the department may approve a decrease in the penal sum if the owner or operator demonstrates to the department that the amount exceeds the remaining cost of postclosure care.i. 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 department. Cancellation may not occur, however, during the one hundred twenty days beginning on the date of receipt of this notice of cancellation by both the owner or operator and the department as evidenced by the return receipts.j. The owner or operator may cancel the bond if the department has given prior written consent. The department will provide such written consent 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.k. The surety will not be liable for deficiencies in the performance of closure or postclosure care by the owner or operator after the department releases the owner or operator from the requirements of this section in accordance with subsection 9.4.Closure and postclosure letter of credit.a. An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit which conforms to the requirements of this subsection and submitting the letter to the department. An owner or operator of a new facility must submit the letter of credit to the department at least sixty days before the date on which hazardous waste is first received for disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit in this state and whose letters of credit operations are regulated and examined by a federal agency or by the state department of financial institutions.b. The wording of the letter of credit must be identical to the wording specified in subsection 4 of section 33-24-05-81.c. An owner or operator who uses a letter of credit to satisfy the requirements of this section shall also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the department will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the department. This standby trust fund must meet the requirements of the trust fund specified in subsection 1 except that: (1) An originally signed duplicate of the trust agreement must be submitted to the department with the letter of credit.(2) Unless the standby trust fund is funded pursuant to the requirements of this subsection the following are not required by this chapter: (a) Payments into the trust fund as specified in subsection 1.(b) Updating of schedule A of the trust agreement to show current or postclosure, or both, cost estimates.(c) Annual valuations as required by the trust agreement; and(d) Notices of nonpayment as required by the trust agreement. d. The letter of credit must 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 following information: The identification number, name, and address of the facility and the amount of funds assured for closure and postclosure care of the facility by the letter of credit.e. The letter of credit must be irrevocable and issued for a period of at least one year. The letter of credit must 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 department 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 will begin on the date when both the owner or operator and the department have received notice as evidenced by the return receipts.f. The letter of credit must be issued in an amount at least equal to the current closure or postclosure, or both, cost estimate, except as provided in subsection 7.g. Whenever the current closure or postclosure or both, cost estimate, increases to an amount greater than the amount of the letter of credit during the operating life of the facility, the owner or operator within sixty days after the increase shall either cause the amount of the letter of credit to be increased so that it at least equals the current closure or postclosure, or both, cost estimate, and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure or postclosure, or both, cost estimate decreases, the amount of the credit may be reduced to the amount of the current estimate following written approval by the department. h. During the period of postclosure care, the department may approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the department that the amount exceeds the remaining cost of postclosure care.i. Following a determination by the department that the owner or operator has failed to perform closure or postclosure care in accordance with the closure or postclosure plan or other permit requirements, the department may draw on the letter of credit.j. If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the department within ninety days after receipt by both the owner or operator and the department of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the department will draw on the letter of credit. The department 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 department will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the department.k. The department will return the letter of credit to the issuing institution 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 requirements of this subsection in accordance with subsection 9.5.Closure and postclosure insurance.a. An owner or operator may satisfy the requirements of this section by obtaining closure and postclosure insurance which conforms to the requirements of this subsection and submitting a certificate of such insurance to the department. An owner or operator of a new facility must submit the certificate of insurance to the department at least sixty days before the date on which hazardous waste is first received for treatment, storage, or disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be licensed to transact the business of insurance in this state or eligible to provide insurance as an excess or surplus lines insurer in one or more states.b. The wording of the certificate of insurance must be identical to the wording specified in subsection 5 of section 33-24-05-81.c. The closure and postclosure insurance policy must be issued for a face amount of at least equal to the current closure or postclosure, or both, cost estimate, except as provided in subsection 7. 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.d. The closure and postclosure insurance policy must guarantee that funds will be available to close the facility or perform postclosure final care, or both, when final closure or the postclosure period begins. The policy must also guarantee that once final closure or postclosure 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 department to such party or parties as the department specifies. e. After beginning partial or final closure or during the postclosure period, or both, an owner or operator or any other person authorized to perform closure or postclosure may request reimbursement for closure or postclosure expenditures by submitting itemized bills to the department. The owner or operator may request reimbursement for partial closure only if the remaining value of the policy is sufficient to cover the maximum cost of closing the facility over its remaining operating life. Within sixty days after receiving bills for closure or postclosure activities, the department will determine whether the expenditures are in accordance with the partial or final closure or postclosure plan or otherwise justified and if so, the department will instruct the insurer to make reimbursement in such amounts as the department specifies in writing. If the department has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the face amount of the policy, 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 of the facility. If the department does not instruct the insurer to make such reimbursement, the department will provide the owner or operator with a detailed written statement of reasons.f. The owner or operator shall maintain the policy in full force and effect until the department consents to termination of the policy by the owner or operator as specified in subdivision k. Failure to pay the premium without substitution of alternate financial assurance, as specified in this section, will constitute a significant violation of this chapter warranting such remedy as the department deems necessary. Such violation will be deemed to begin upon receipt by the department of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.g. Each policy must 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.h. The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy, except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, 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 department. Cancellation, termination, or failure to renew may not occur, however, during the one hundred twenty days beginning with the date of receipt of a notice by the department 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: (1) The department deems the facility abandoned;(2) The permit is terminated or revoked or a new permit is denied;(3) Closure is ordered by the department or a state court or other court of competent jurisdiction;(4) The owner or operator is named as debtor in a voluntary or involuntary proceeding under United States Code title 11 (bankruptcy); or(5) The premium due is paid.i. Whenever the current closure or postclosure, or both, cost estimate increases to an amount greater than the face amount of the policy, the owner or operator within sixty days after the increase must either cause the face amount to be increased to an amount at least equal to the current closure or postclosure, or both, cost estimate and submit evidence of such increase to the department, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure or postclosure, or both, cost estimate decreases, the face amount may be reduced to the amount of the current closure or postclosure, or both, cost estimate following a written approval by the department.j. For postclosure insurance only, commencing on the date that liability to make payments pursuant to a postclosure policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy less any payments made, multiplied by an amount equivalent to eighty-five percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the United States treasury for twenty-six-week treasury securities.k. The department will give written consent to the owner or operator that the owner or operator may terminate the insurance policy 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 9.6.Financial test and corporate guarantee for closure and postclosure care.a. An owner or operator may satisfy the requirements of this section by demonstrating that the owner or operator passes a financial test as specified in this subsection. To pass this test, the owner or operator must meet the criteria of either paragraph 1 or paragraph 2 .(1) The owner or operator must have:(a) Two of the following three ratios: A ratio of total liabilities to net worth less than two; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than one-tenth; and a ratio of current assets to current liabilities greater than one and five-tenths;(b) Net working capital and tangible net worth each at least six times the sum of the current closure and postclosure cost estimates and the current plugging and abandonment cost estimate;(c) Tangible net worth of at least ten million dollars; and(d) Assets in the United States amounting to at least ninety percent of owner's or operator's total assets or at least six times the sum of the current closure and postclosure cost estimates, and the current plugging and abandonment cost estimates.(2) The owner or operator must have: (a) 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;(b) Tangible net worth at least six times the sum of the current closure and postclosure cost estimates and the current plugging and abandonment cost estimates;(c) Tangible net worth of at least ten million dollars; and(d) Assets located in the United States amounting to at least ninety percent of the owner's or operator's total assets or at least six times the sum of the current closure and postclosure cost estimates and the current plugging and abandonment cost estimates.b. The phrase "current closure and postclosure cost estimates" as used in subdivision a refers to the cost estimates required to be shown in paragraphs 1 through 4 of the letter from the owner's or operator's chief financial officer (subsection 6 of section 33-24-05-81). The phrase "current plugging and abandonment cost estimates" as used in subdivision a refers to the cost estimates required to be shown in paragraphs 1 through 3 of the letter from the owner's or operator's chief financial officer (40 CFR part 144.70(f)).c. To demonstrate that the owner or operator meets the financial test, the owner or operator must submit the following items to the department: (1) A letter signed by the owner's or operator's chief financial officer and worded as specified in subsection 6 of section 33-24-05-81;(2) 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(3) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:(a) 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(b) 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. d. An owner or operator of a new facility must submit the items specified in subdivision c to the department at least sixty days before the date on which hazardous waste is first received for treatment, storage, or disposal.e. After the initial submission of items specified in subdivision c , the owner or operator must send updated information to the department within ninety days after the close of each succeeding fiscal year. This information must consist of all three items specified in subdivision c .f. If the owner or operator no longer meets the requirements of subdivision a , the owner or operator must send notice to the department of intent to establish alternate financial assurance as specified in this section. The notice must 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 must provide the alternate financial assurance within one hundred twenty days after the end of each fiscal year. g. The department may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subdivision a , require reports of financial condition at any time from the owner or operator in addition to those specified in subdivision c . If the department finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subdivision a , the owner or operator must provide alternate financial assurance specified in this section within thirty days after notification of such a finding.h. The department may disallow use of this test on the basis of qualification in the opinion expressed by the independent certified public accountant in the accountant's report on examination of the owner's or operator's statements (see paragraph 2 of subdivision c ). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The department will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within thirty days after notification of the disallowance.i. The owner or operator is no longer required to submit the items specified in subdivision c : (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.j. An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must 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 must meet the requirements for owners or operators in subdivisions a through h and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in subdivision a of subsection 8 of section 33-24-05-81. The certified copy of the guarantee must accompany the items sent to the department as specified in subdivision c One of these items must 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 must 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 must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:(1) If the owner or operator fails to perform final closure or postclosure, or both, of a facility covered by the corporate guarantee in accordance with the closure or postclosure, or both, plan and other permit requirements when required to do so, the guarantor will do so or establish a trust fund as specified in subsection 1 in the name of the owner or operator.(2) 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 department. 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 department, as evidenced by the return receipts.(3) If the owner or operator fails to provide alternate financial assurance as specified in this section and fails to obtain the written approval of such alternate assurance from the department within ninety days after receipt by both the owner or operator and the department of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.k. Companies not required to submit an audited financial statement to the United States securities and exchange commission must have an auditor's opinion prepared by an auditor licensed in this state.7.The use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this section 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 must be as specified in this section, except that it is the combination of mechanisms, rather than the single mechanism which must provide financial assurance for an amount at least equal to the current closure or postclosure, or both, cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a 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 fund may be established for two or more mechanisms. The department may use any or all of the mechanisms to provide for closure or postclosure, or both, care of the facility.8.Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the department must include a list showing for each facility the identification number, name, address, and the amount of funds for closure or postclosure, or both, care assured by the mechanism. The amount of funds available through the mechanism must 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 or postclosure care of any of the facilities covered by the mechanism, the department 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.9.Release of the owner or operator from the requirements of this section. Within sixty days after receiving certifications from the owner or operator and a qualified professional engineer that final closure or postclosure care, or both, has been completed in accordance with an approved closure or postclosure care plan, the department will notify the owner or operator in writing that the owner or operator is no longer required by this section to maintain financial assurance for final closure or postclosure care, or both, of the facility, unless the department has reason to believe that final closure or postclosure care, or both, has not been in accordance with the approved closure or postclosure care plans. The department shall provide the owner or operator a detailed written statement of any such reason to believe that closure or postclosure, or both, has not been in accordance with the approved closure or postclosure plans.N.D. Admin Code 33-24-05-77
Effective January 1, 1984; amended effective October 1, 1986; December 1, 1988; December 1, 1991; January 1, 1994; July 1, 1997.Amended by Administrative Rules Supplement 2016-359, January 2016, effective 1/1/2016.General Authority: NDCC 23-20.3-03
Law Implemented: NDCC 23-20.3-03, 23-20.3-04