Section 33-24-05-1063 - Financial assurance for closureThe owner or operator must establish financial assurance for closure of each storage or treatment unit that the owner or operator owns or operates. In establishing financial assurance for closure, the owner or operator must choose from the financial assurance mechanisms in subsections 1 through 7. The owner or operator can also use a combination of mechanisms for a single facility if the owner or operator meets the requirements in subsection 8, or may use a single mechanism for multiple facilities as in subsection 9. The department will release the owner or operator from the requirements of this section after the owner or operator meets the criteria under subsection 10.
1. Closure Trust Fund. Owners and operators can use the "closure trust fund" that is specified in subdivisions a and b of subsection 1 of section 33-24-05-77, and subdivisions f, g, h, i, k, and l of subsection 1 of section 33-24-05-77. For purposes of this subsection, the following provisions also apply: a. Payments into the trust fund for a new facility must be made annually by the owner or operator over the remaining operating life of the facility as estimated in the closure plan, or over three years, whichever period is shorter. This period of time is hereafter referred to as the "pay-in period".b. For a new facility, the first payment into the closure trust fund must be made before the facility may accept the initial storage. A receipt from the trustee must be submitted by the owner or operator to the department before this initial storage of waste. The first payment must be at least equal to the current closure cost estimate, divided by the number of years in the pay-in period, except as provided in subsection 8 for multiple mechanisms. Subsequent payments must be made no later than thirty days after each anniversary date of the first payment. The owner or operator determines the amount of each subsequent payment by subtracting the current value of the trust fund from the current closure cost estimate, and dividing this difference by the number of years remaining in the pay-in period. Mathematically, the formula is: Next payment = (current closure estimate - current value of the trust fund) divided by years remaining in the pay-in period.
c. The owner or operator of a facility existing on the effective date of this subsection can establish a trust fund to meet this subsection's financial assurance requirements. If the value of the trust fund is less than the current closure cost estimate when a final approval of the permit is granted for the facility, the owner or operator must pay the difference into the trust fund within sixty days. d. The owner or operator may accelerate payments into the trust fund or deposit the full amount of the closure cost estimate when establishing the trust fund. However, the owner or operator must 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 b or c.e. The owner or operator must submit a trust agreement with the wording specified in subdivision a of subsection 1 of section 33-24-05-81.2. Surety bond guaranteeing payment into a closure trust fund. Owners and operators can use the "surety bond guaranteeing payment into a closure trust fund", as specified in subsection 2 of section 33-24-05-77, including the use of the surety bond instrument specified at subsection 2 of section 33-24-05-81, and the standby trust specified at subdivision c of subsection 2 of section 33-24-05-77.3. Surety bond guaranteeing performance of closure. Owners and operators can use the "surety bond guaranteeing performance of closure", as specified in subsection 3 of section 33-24-05-77, the submission and use of the surety bond instrument specified at subsection 3 of section 33-24-05-81, and the standby trust specified at subdivision c of subsection 3 of section 33-24-05-77.4. Closure letter of credit. Owners and operators can use the "closure letter of credit" specified in subsection 4 of section 33-24-05-77, the submission and use of the irrevocable letter of credit instrument specified in subsection 4 of section 33-24-05-81, and the standby trust specified in subdivision c of subsection 4 of section 33-24-05-77.5. Closure insurance. Owners and operators can use "closure insurance", as specified in subsection 5 of section 33-24-05-77, utilizing the certificate of insurance for closure specified at subsection 5 of section 33-24-05-81.6. Corporate financial test. An owner or operator that satisfies the requirements of this subsection may demonstrate financial assurance up to the amount specified in this subsection: a. Financial component. (1) The owner or operator must satisfy one of the following three conditions:(a) A current rating for its senior unsecured debt 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) A ratio of less than one and five-tenths comparing total liabilities to net worth; or(c) A ratio of greater than one-tenth comparing the sum of net income plus depreciation, depletion and amortization, minus ten million dollars, to total liabilities.(2) The tangible net worth of the owner or operator must be greater than:(a) The sum of the current environmental obligations (see bracket 1 of subparagraph a of paragraph 1 of subdivision b), including guarantees, covered by a financial test plus ten million dollars, except as provided in subparagraph b.(b) Ten million dollars in tangible net worth plus the amount of any guarantees that have not been recognized as liabilities on the financial statements provided all of the environmental obligations (see bracket 1 of subparagraph a of paragraph 1 of subdivision b) covered by a financial test are recognized as liabilities on the owner's or operator's audited financial statements, and subject to the approval of the department.(3) The owner or operator must have assets located in the United States amounting to at least the sum of environmental obligations covered by a financial test as described in bracket 1 of subparagraph a of paragraph 1 of subdivision b.b. Recordkeeping and reporting requirements. (1) The owner or operator must submit the following items to the department: (a) A letter signed by the owner's or operator's chief financial officer that: [1] Lists all the applicable current types, amounts, and sums of environmental obligations covered by a financial test. These obligations include both obligations in the programs which the environmental protection agency directly operates and obligations where the environmental protection agency has delegated authority to the state or approved the state's program. These obligations include, but are not limited to: [a] Liability, closure, postclosure and corrective action cost estimates required for hazardous waste treatment, storage, and disposal facilities under sections 33-24-05-58, 33-24-05-76, 33-24-05-79, and subsection 5 of section 33-24-06-16;[b] Cost estimates required for municipal solid waste management facilities under sections 33-20-14-02, 33-20-14-03, 33-20-14-04, and 33-20-14-05;[c] Current plugging cost estimates required for underground injection control facilities under subdivision d of subsection 1 of section 33-25-01-06;[d] Cost estimates required for petroleum underground storage tank facilities under section 33-24-08-83;[e] Cost estimates required for polychlorinated biphenyl storage facilities under 40 CFR section 761.65;[f] Any financial assurance required under, or as part of an action undertaken under, the comprehensive environmental response, compensation, and liability act; and[g] Any other environmental obligations that are assured through a financial test.[2] Provides evidence demonstrating that the firm meets the conditions of either subparagraph a or b or c of paragraph 1 of subdivision a and paragraphs 2 and 3 of subdivision a.(b) A copy of the independent certified public accountant's unqualified opinion of the owner's or operator's financial statements for the latest completed fiscal year. To be eligible to use the financial test, the owner's or operator's financial statements must receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance, with the potential exception for qualified opinions provided in the next sentence. The department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the department deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the test. If the department does not allow use of the test, the owner or operator must provide alternate financial assurance that meets the requirements of this section within thirty days after the notification of disallowance.(c) If the chief financial officer's letter providing evidence of financial assurance includes financial data showing that the owner or operator satisfies subparagraph b or c of paragraph 1 of subdivision a that are different from data in the audited financial statements referred to in subparagraph b or any other audited financial statement or data filed with the securities and exchange commission, then a special report from the owner's or operator's independent certified public accountant to the owner or operator is required. The special report shall be based upon an agreed upon procedures engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements, the findings of that comparison, and the reasons for any differences.(d) If the chief financial officer's letter provides a demonstration that the firm has assured for environmental obligations as provided in subparagraph b of paragraph 2 of subdivision a, then the letter shall include a report from the independent certified public accountant that verifies that all of the environmental obligations covered by a financial test have been recognized as liabilities on the audited financial statements, how these obligations have been measured and reported, and that the tangible net worth of the firm is at least ten million dollars plus the amount of any guarantees provided.(2) The owner or operator of a new facility must submit the items specified in paragraph 1 to the department at least sixty days before placing waste in the facility.(3) After the initial submission of items specified in paragraph 1, the owner or operator must send updated information to the department within ninety days following the close of the owner or operator's fiscal year. The department may provide up to an additional forty-five days for an owner or operator who can demonstrate that ninety days is insufficient time to acquire audited financial statements. The updated information must consist of all items specified in paragraph 1.(4) The owner or operator is no longer required to submit the items specified in this subdivision or comply with the requirements of this subsection when: (a) The owner or operator substitutes alternate financial assurance as specified in this section that is not subject to these recordkeeping and reporting requirements; or(b) The department releases the owner or operator from the requirements of this subsection in accordance with subsection 10.(5) An owner or operator who no longer meets the requirements of subdivision a cannot use the financial test to demonstrate financial assurance. Instead an owner or operator who no longer meets the requirements of subdivision a, must: (a) Send notice to the department of intent to establish alternate financial assurance as specified in this section. The owner or operator must send this notice by certified mail within ninety days following the close of the owner's or operator's fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements of this subsection.(b) Provide alternative financial assurance within one hundred twenty days after the end of such fiscal year.(6) The department may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subdivision a, require at any time the owner or operator to provide reports of its financial condition in addition to or including current financial test documentation as specified in subdivision b. If the department finds that the owner or operator no longer meets the requirements of subdivision a, the owner or operator must provide alternate financial assurance that meets the requirements of this section.7. Corporate Guarantee. a. 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 subsection 6 and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording in subsection 8 of section 33-24-05-81. The certified copy of the guarantee must accompany the letter from the guarantor's chief financial officer and accountants' opinions. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter from the guarantor's chief financial officer 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.b. For a new facility, the guarantee must be effective and the guarantor must submit the items in subdivision a and the items specified in paragraph 1 of subdivision b of subsection 6 to the department at least sixty days before the owner or operator places waste in the facility.c. The terms of the guarantee must provide that:(1) If the owner or operator fails to perform closure at a facility covered by the guarantee, the guarantor will: (a) Perform, or pay a third party to perform closure (performance guarantee); or(b) Establish a fully funded trust fund as specified in subsection 1 in the name of the owner or operator (payment guarantee).(2) The guarantee will remain in force for as long as the owner or operator must comply with the applicable financial assurance requirements of this subpart unless the guarantor sends prior 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 notice of cancellation is given, the owner or operator must, within ninety days following receipt of the cancellation notice by the owner or operator and the department, obtain alternate financial assurance, and submit documentation for that alternate financial assurance to the department. If the owner or operator fails to provide alternate financial assurance and obtain the written approval of such alternative assurance from the department within the ninety-day period, the guarantor must provide that alternate assurance in the name of the owner or operator and submit the necessary documentation for the alternative assurance to the department within one hundred twenty days of the cancellation notice.d. If a corporate guarantor no longer meets the requirements of subdivision a of subsection 6, the owner or operator must, within ninety days, obtain alternative assurance, and submit the assurance to the department for approval. If the owner or operator fails to provide alternate financial assurance within the ninety-day period, the guarantor must provide that alternate assurance within the next thirty days, and submit it to the department for approval.e. The guarantor is no longer required to meet the requirements of this subsection when: (1) The owner or operator substitutes alternate financial assurance as specified in this section; or(2) The owner or operator is released from the requirements of this subsection in accordance with subsection 10.8. Use of Multiple Financial Mechanisms. An owner or operator may use more than one mechanism at a particular facility to satisfy the requirements of this section. The acceptable mechanisms are trust funds, surety bonds guaranteeing payment into a trust fund, letters of credit, insurance, the financial test, and the guarantee, except owners or operators cannot combine the financial test with the guarantee. The mechanisms must be as specified in subsections 1, 2, 4, 5, 6, and 7, respectively, except it is the combination of mechanisms rather than a single mechanism that must provide assurance for an amount at least equal to the 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 for the other mechanisms. A single trust fund can be established for two or more mechanisms. The department may use any or all of the mechanisms to provide for closure of the facility.9. Use of a financial mechanism for multiple facilities. An owner or operator may use a financial mechanism for multiple facilities, as specified in subsection 8 of section 33-24-05-77.10. 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 has been completed in accordance with the approved closure 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 of the facility, unless the department has reason to believe that final closure has not been completed in accordance with the approved closure plan. The department shall provide the owner or operator with a detailed written statement of any such reasons to believe that closure has not been conducted in accordance with the approved closure plan.N.D. Admin Code 33-24-05-1063
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, 23-20.3-05