ILLINOIS POLLUTION CONTROL BOARD
May 4, 1995
RCRA SUBTITLE D UPDATE, DELAYED
)
EFFECTIVE DATE OF USEPA
)
R95—13
FINANCIAL ASSURANCE REGULATIONS
)
(Identical
in Substance Rules)
(4—7—95)
)
(Solid Waste——Landfill)
Proposal for Public Comment.
PROPOSED OPINION
AND
ORDER OF THE BOARD
(by G. Tanner Girard):
Pursuant to Sections 7.2 and 22.40(a)
of the Environmental
Protection Act (Act)
415
ILCS 5/7.2
& 22.40(a)
(1992)),
the
Board proposes amendments to the RCRA Subtitle D municipal solid
waste landfill
(RCRA Subtitle D) regulations.
Section 22.40(a) provides for quick adoption of regulations
that are “identical in substance” to federal regulations adopted
by U.S. EPA to implement Sections 4004 and 4010 of the Resource
Conservation and Recovery Act of 1976
(RCRA,
42 U.S.C.
SS
6944
&
6949a) and that Title VII of the Act and Section
5 of the
Administrative Procedure Act (APA)
5
ILCS 100/5-35
& 5-40
(1992)
shall not apply.
Because this rulemaking is not subject
to Section
5 of the APA,
it is not subject to first notice or to
second notice review by the Joint Committee on Administrative
Rules
(JCAR).
The federal RCRA Subtitle D regulations are found
at 40 CFR 258.
DISCUSSION
U.S. EPA amended its RCRA Subtitle D regulations on April
7,
1995.
Those amendments delay the effective date of the federal
financial assurance requirements until April
9,
1997.
The former
effective date was April
9,
1995
(or October
9,
1995 for remote,
very small landfills,
as defined by 40 CFR 258.1(f) (1)).
U.S.
EPA amended the dates at 40 CFR 258.70(b)
and 258.74(a) (5),
(b) (1),
(C)
(1), and
(d) (1).
The stated purpose for the delay was
to allow U.S. EPA additional time to perfect financial tests for
local government and corporate self—assurance.
Accordingly, the Board has revised the financial assurance
compliance deadlines to April
9,
1997.
This required amendment
of Sections 811.700(f) and
(g), 811.706(c) (1), 811.711(a),
811.712(a), and 811.713(a), which are all locations where a
compliance deadline appears in the regulations.
In addition to
the federally-derived amendments in this rulemaking, the Board
has made a number of corrective and general housekeeping
amendments in this rulemaking.
All citations to the Code of
Federal Regulations were updated in the open Sections.
All the
former references to the Illinois Compiled Statutes are removed
in favor of citations to the Illinois Revised Statutes.
We
removed the explanatory Board Note at the end of Section 811.700
2
because it is no longer necessary.
The Board removed the
parenthetical explanation that the April
9,
1995 date is the
effective date in Section 811.706(c) (1), consistent with the
change in the federal regulations.
We further added an
explanation to the Board Note at the end of Section 811.706 that
the amendments were prompted by the federal amendments to 40
CFR.74(a) (5), which does not correlate to this provision; there
is no date recited in the cited 40 CFR 258.74(1).
Additionally,
the Board made a handful of additional minor conforming changes
in punctuation and style.
PUBLIC COMMENTS
The Board invites public comment on the amendments included
in this docket.
A Notice of Proposed Amendments will appear in
the Illinois Rec~isterrelating to this matter.
The public
comment period will end 45 days after that Notice appears in the
Register.
Interested persons should address their comments to
the Clerk of the Board.
Address questions to Michael J.
McCambridge, at 312—814—6924; Anand Rao, at 312—814—3956; or
Marie E.
Tipsord, at 312—814—4925 or 618—498—9803.
ORDER
The complete text of the proposed amendments follows:
TITLE 35:
ENVIRONMENTAL PROTECTION
SUBTITLE G:
WASTE DISPOSAL
CHAPTER I:
POLLUTION CONTROL BOARD
SUBCHAPTER
i:
SOLID WASTE
AND
SPECIAL WASTE HAULING
PART 811
STANDARDS FOR
NEW
SOLID WASTE LANDFILLS
SUBPART
A:
GENERAL
STANDARDS
FOR
ALL
LANDFILLS
Section
811.101
Scope
and
Applicability
811.102
Location Standards
811.103
Surface Water Drainage
811.104
Survey Controls
811.105
Compaction
811.106
Daily Cover
811.107
Operating Standards
811.108
Salvaging
811.109
Boundary Control
811.110
Closure and Written Closure Plan
811.111
Postclosure Maintenance
SUBPART B:
INERT
WASTE
LANDFILLS
Section
3
811.
201
811.202
811.203
811.204
811.205
811.206
811.207
Scope and Applicability
Determination of Contaminated Leachate
Design Period
Final Cover
Final Slope and Stabilization
Leachate Sampling
Load Checking
SUBPART
C:
PUTRESCIBLE AND CHEMICAL WASTE LANDFILLS
Section
811.301
811.302
811.303
811.
304
811.305
811.306
811.307
811. 308
811.309
811. 310
811.
311
811.312
811.313
811.314
811.315
811.316
811.
317
811.318
811.319
811.320
811.
321
811.322
811.323
811.324
811.325
811.326
Section
811.401
811.
402
811.
403
811.
404
811.405
811.406
Section
811.
501
811. 502
Scope and Applicability
Facility Location
Design Period
Foundation and Mass Stability Analysis
Foundation Construction
Liner Systems
Leachate Drainage System
Leachate Collection System
Leachate Treatment and Disposal System
Landfill Gas Monitoring
Landfill Gas Management System
Landfill Gas Processing and Disposal System
Intermediate Cover
Final Cover System
Hydrogeological Site Investigations
Plugging and Sealing of Drill Holes
Groundwater Impact Assessment
Design, Construction, and Operation of Groundwater
Monitoring Systems
Groundwater Monitoring Programs
Groundwater Quality Standards
Waste Placement
Final Slope and Stabilization
Load Checking Program
Corrective Action Measures for MSWLF Units
Selection of remedy for
MSWLF
Units
Implementation of the corrective action program at
MSWLF Units
SUBPART D:
MANAGEMENT OF SPECIAL WASTES AT LANDFILLS
Scope and Applicability
Notice to Generators and Transporters
Special Waste Manifests
Identification Record
Recordkeeping Requirements
Procedures for Excluding Regulated Hazardous Wastes
SUBPART E:
CONSTRUCTION QUALITY ASSURANCE PROGRAMS
Scope and Applicability
Duties and Qualifications of Key Personnel
4
Inspection Activities
Sampling Requirements
Documentation
Foundations and Subbases
Compacted Earth Liners
Geomembranes
Leachate Collection Systems
Section
811.700
811.701
811.702
811.703
811.704
811.705
811.706
811.707
811. 708
811.
709
811.
710
811.711
811.712
811.
713
811.
714
811.
715
Scope, Applicability and Definitions
Upgrading Financial Assurance
Release of Financial Institution
Application of Proceeds and Appeals
Closure and Postclosure Care Cost Estimates
Revision of Cost Estimate
Mechanisms for Financial Assurance
Use of Multiple Financial Mechanisms
Use of a Financial Mechanism for Multiple Sites
Trust Fund for Unrelated Sites
Trust Fund
Surety Bond Guaranteeing Payment
Surety Bond Guaranteeing Performance
Letter of Credit
Closure Insurance
Self—Insurance for Non—commercial Sites
811.Appendix A Financial Assurance Forms
Illustration A Trust Agreement
Illustration B Certificate of Acknowledgment
Illustration C Forfeiture Bond
Illustration D Performance Bond
Illustration E Irrevocable Standby Letter of Credit
Illustration F Certificate of Insurance for Closure and/or
Postclosure Care
Illustration G Operator’s Bond Without Surety
Illustration H Operator’s Bond With Parent Surety
Illustration
I Letter from Chief Financial Officer
811.Appendix B Section-by—Section Correlation Between the
Requirements of the Federal MSWLF Regulations at
40 CFR 258
(1992)
and the Requirements of Parts
810 through 814.
AUTHORITY:
Implementing Sections 5,
21,
21.1,
22, 22.17 and 28.1
and authorized by Section 27 of the Environmental Protection Act
(T11
flr~v.
~
1~~L
c~h..
111
1I~
~
innc
ifl,1
1A’~1..1
1022,
1022.17,
10
22.17.
28.1
&
27
d 1027) 1415
5/5,21.21.1.22.
I
SOURCE:
Adopted in R88—7 at 14 Ill. Reg.
15861, effective
September 18,
1990; amended in R92—19 at 17 Ill. Reg.
12413,
811.503
811.
504
811.505
811.
506
811.
507
811.
508
811.
509
SUBPART
G:
FINANCIAL
ASSURANCE
5
effective July 19,
1993; amended in R93—10 at 18 Ill. Reg.
1308,
effective January 13,
1994; expedited correction at 18 Ill.
Reg.
7504, effective July 19,
1993;
amended in R90—26 at 18 Ill.
Reg.
12481,
effective August
1,
1994; amended in R95—xx at 19
Ill.
Reg.
________,
effective _____________________
NOTE:
Capitalization indicates statutory language.
SUBPART G:
FINANCIAL ASSURANCE
Section 811.700
Scope, Applicability and Definitions
a)
This Subpart provides procedures by which the owner or
operator of a permitted waste disposal facility
provides financial assurance satisfying the
requirements of Section 21.1(a)
of the Act.
b)
Financial assurance may be provided, as specified in
Section
811.706,
by
a
trust
agreement,
a
bond
guaranteeing
payment,
a
bond
guaranteeing payment or
performance,
a
letter
of
credit,
insurance
or
self—
insurance.
The owner or operator shall provide
financial
assurance
to
the
Agency
before the receipt of
the
waste.
c)
Except
as
provided
in
subsection
(f), this Subpart does
not apply to the State of Illinois, its agencies and
institutions,
or to any unit of local government;
provided, however, that any other persons who conduct
such a waste disposal operation on a site that is owned
or operated by such a governmental entity shall provide
financial assurance for closure and postclosure care of
the site.
d)
The owner or operator is not required to provide
financial assurance pursuant to this Subpart if the
owner or operator demonstrates:
1)
That closure and postclosure care plans filed
pursuant to 35 Ill. Adm. Code 724 or 725 will
result in closure and postclosure care of the site
in accordance with the requirements of this Part;
and
2)
That the owner or operator has provided financial
assurance adequate to provide for such closure and
postclosure care pursuant to 35 Ill. Adm. Code 724
or 725.
e)
Definition:
“Assumed closure date” means the date
during the next permit term on which the costs of
6
premature
final
closure
of
the
facility,
in
accordance
with
the
standards
of
this
Part,
will
be
greatest.
f)
On
or
after
April
9, 199~2,no person,
other than the
State
of
Illinois,
its agencies and institutions, shall
conduct any disposal operation at a MSWLF unit that
requires a permit under subsection
(d)
of section 21.1
of the Act, unless that person complys with the
financial assurance requirements of this Part.
g)
The standards adopted in this subpart that are
identical in substance to the federal Subtitle D
regulations that are individually indicated as
applicable to MSWL units shall not apply to such units
until April
9, 199~~.
BOARD NOTE~-:
Subsection
(f) clarifies the
applicability of the financial assurance requirements
to local governments.~since the Subtitle D regulations
exempt only federal and state governments from
financial assurance requirements~ (See 40 CFR 258.70
(199~~).as amended at 60 Fed.
Reci.
17652
(Apr.
7,
1995)).
BOARD
NOTEt
Thc
compliance
datco
specified
in
subsections
(f)
and
(g)
ref loot
the revised dates
proposed by thc UCEPA in thc Fcdcral Rcgistcr
Notification published on July 28,
1993
(sec 58 FR
40568). The Board notco that the rcviacd dates arc
included in the regulations in order to be identical in
substance with the federal Cubtitlo D program.
Thc
Board recognizes that the proposcd revisions arc not
yet final.
However, the Board anticipatco that the
UCEPA’a proposal will become effective before the end
of the post-adoption comment period of the instant
rulemaking.
Thug,
if thorc arc any changes in the
final version of the federal rules, the Board will make
eorrrnnr~r~i1,rfchanges in the instant regulations.
(Source:
Amended at 19
Ill. Reg.
________,
effective
___________
_______________________)
Section
811.706
Mechanisms
for
Financial
Assurance
a)
The owner or operator of
a waste disposal site may
utilize any of the
mechanisms listed in subsections
(a) (1) through
(a) (6)
to provide financial assurance
for closure and postclosure care,
and for corrective
action at a MSWLF unit.
An owner or operator of a
MSWLF unit shall also meet the requirements of
subsections
(b), (c)~and
(d).
The mechanisms are as
follows:
7
1)
A trust
Fund
(see
Section
811.710);
2)
A
surety
Bond
Guaranteeing
Payment
(see
Section
811.711);
3)
A
surety
Bond
Guaranteeing
Performance
(gg~,
Section
811.712);
4)
A letter of Credit (see Section 811.713);
5)
Closure
Insurance
(see
Section
811.714);
or
6)
Self—insurance (see Section 811.715).
b)
The owner or operator of a MSWLF unit
shall
ensure
that
the
language
of
the
mechanisms
listed
in subsection
(a),
when
used
for
providing
financial
assurance
for
closure, postclosure, and corrective action,
satisfies
the following:
1)
The
amount
of
funds
assured
is
sufficient
to
cover
the
costs
of
closure,
post—closure
care,
and
corrective
action;
and
2)
The
funds
will
be
available
in
a
timely
fashion
when
needed.
c)
The
owner
or
operator
of
a
MSWLF
unit
shall
provide
financial
assurance
utilizing
one
or
more
of
the
mechanisms
listed
in
subsection
(a)
within
the
following dates:
1)
By
April
9,
1994~ (the
cffeotive
date
of
these
rcquircments)
or
prior
to
the
initial
receipt of
solid
waste,
whichever
is
later,
in
the
case
of
closure
and
post—closure
care;
or
2)
No
later
than
120
days
after
the
remedy
has
been
selected in accordance with the requirements of
Section 811.325, in the case of corrective action.
d)
The owner or operator shall provide continuous coverage
until the owner or operator is released from the
financial assurance requirements pursuant to 35 Ill.
Adm. Code 813.403(b)
or Section 811.326.
Board Notc.BOARD NOTE:
Subsections
(b) and
(c)
are
derived from 40 CFR 258.74(1)
(1992-4j.
Amendments
prompted by amendments to 40 CFR 258.74(a) (5)
(1994).
as amended at 60 Fed. Reg. 17652
(Apr.
7.
1995).
(Source:
Amended at 19 Ill. Reg.
________,
effective
_________
8
____________________________
)
Section
811.711
Surety
Bond
Guaranteeing
Payment
a)
An
owner
or
operator
may
satisfy
the
requirements
of
this Subpart by obtaining a surety bond which conforms
to
the
requirements
of
this
Section
and
submitting
the
bond
to
the
Agency.
A
surety
bond
obtained
by
an
owner
or
operator
of
a
MSWLF
unit
must
be
effective
before
the
initial
receipt
of
waste
or
before
April
9,
19942
(the
effective
date
of
the
financial
assurance
requirements
under
RCRA
Subtitle
D
regulations),
whichever is later,
in the case of closure and
post—closure care, or no later than 120 days after the
remedy has been selected in accordance with the
requirements of Section 811.325.
b)
The
surety
company
issuing
the
bond
shall
be
licensed
by
the
Illinois
Department
of
Insurance
pursuant
to
the
Illinois
Insurance
Code
(Ill.
Rev.
Ctat.
1091,
oh.
73,
parc.
613
at
seq.
215
ILCS
5/1
et
seq.-)-
and
approved
by
the
U.S.
Department
of
the
Treasury
as
an
acceptable
surety.
BOARD
NOTE:
The U.S. Department of the Treasury lists
acceptable
sureties
in its Circular 570.
c)
The
surety
bond
must
be
on
the
forms
specified
in
Appendix A, Illustration C, D~or H.
d)
Any
payments
made
under
the
bond
will
be
placed
in
the
landfill
closure
and
postclosure
fund
within
the
State
Treasury.
e)
Conditions:
1)
The bond must guarantee that the owner or operator
will provide closure and postclosure care in
accordance
with
the
approved
closure
and
postclosure
care
plans.
If
the
facility
is
a
MSWLF
unit,
then
the
corrective
action
bond
must
guarantee that the owner or operator will
implement corrective action in accordance with
Section 811.326.
2)
The
surety
will
become
liable
on
the
bond
obligation
when,
during
the
term
of
the
bond,
the
owner or operator fails to perform as guaranteed
by the bond.
The owner or operator fails to
perform when the owner or operator:
A)
Abandons
the
site;
9
B)
Is adjudicated bankrupt;
C)
Fails
to
initiate
closure
of
the
site
or
postclosure
care
or
corrective
action
when
ordered to do so by the Board pursuant to
Title
VII
of
the
Act,
or
when
ordered
to
do
so
by
a
court
of
competent
jurisdiction;
D)
Notifies the
Agency
that
it has initiated
closure or corrective action, or initiates
closure
or
corrective
action,
but
fails
to
close
the
site
or
provide
postclosure
care
or
corrective
action
in
accordance
with
the
closure and postclosure care or corrective
action
plans;
or
E)
For
a
corrective
action
bond,
fails
to
implement
corrective
action
at
a
MSWLF
unit
in accordance with Section 811.326
f)
Penal
sum:
1)
The
penal
sum
of
the
bond
must
be
in
an
amount
at
least
equal
to
the current cost estimate.
2)
The Agency shall approve a reduction in the penal
sum
whenever
the
current
cost
estimate
decreases.
g)
Term:
1)
The
bond
must
be
issued
for
a
term
of
at
least
five
years
and must not be cancelable during that
term.
2)
If the owner or operator
fails
to
provide
substitute
financial assurance prior to expiration
of a bond,
the term of the bond must be
automatically extended for one twelve—month period
starting with the date of expiration of the bond.
During such extension the bond will cease to serve
as financial assurance satisfying the requirements
of this Part,
and will not excuse the owner or
operator from the duty to provide substitute
financial assurance.
3)
The Agency shall release the surety
if, after the
surety becomes liable on the bond, the owner or
operator or another person provides financial
assurance for closure and postclosure care of the
site or corrective action at a
MSWLF
unit,
unless
the Agency determines that the closure or
postclosure care plan,
corrective action program
10
at
a
MSWLF
unit,
or
the
amount
of
substituted
financial assurance is
inadequate to provide
closure and postclosure care or implement
corrective action in compliance with this Part.
h)
Cure of default and refunds:
1)
The
Agency
shall
release
the
surety
if,
after
the
surety becomes liable on the bond,
the owner or
operator or another person provides financial
assurance for closure and postclosure care of the
site or corrective action at a MSWLF unit, unless
the
Agency
determines
that
the closure or
postclosure
care
plan,
corrective
action
at
a
MSWLF
unit
or
the
amount
of
substituted
financial
assurance is inadequate to provide closure and
postclosure
care
or
implement
corrective
action
in
compliance
with
this
Part.
2)
After
closure
and
postclosure
care
have
been
completed
in
accordance
with
the
plans
and
requirements
of
this
Part
or
after
the
completion
of corrective action at a MSWLF unit in accordance
Section 811.326,
the
Agency
shall
refund
any
unspent money which was paid into the “Landfill
Closure and Postclosure Fund” by the surety.
Board
Notc.BOARD NOTE:
MSWLF
corrective
A~ction
language
at
subsection
(a)
is
derived
from
40
CFR
258.74(b)(1)
(199~-~).as amended at 60 Fed. Req.
17652
(Apr.
7.
1995).
The
other
clarifying
changes
reflect
the
inclusion
of
financial
assurance
requirements
for
implementing
corrective
action
at
MSWLF units under this Section.
(Source:
Amended
at
19
Ill.
Reg.
________,
effective
___________
__________________________
)
Section
811.712
Surety
Bond
Guaranteeing
Performance
a)
An
owner
or
operator
may satisfy the requirements of
this Subpart by obtaining a surety bond which conforms
to
the
requirements
of
this
Section and submitting the
bond
to
the
Agency.
A
surety
bond
obtained
by
an
owner
or
operator
of
a
MSWLF
unit
must
be
effective
before the initial receipt of waste or before April
9,
1994~(the effective date of the financial assurance
requirements
under
RCRA
Subtitle
D
regulations),
whichever is later,
in the case of closure and
post—closure care,
or no later than 120 days after the
remedy has been selected in accordance with the
requirements
of
Section
811.325.
11
b)
The surety company issuing the bond shall be licensed
by
the
Illinois
Department
of
Insurance
pursuant
to
the
Illinois Insurance Code
(Ill.
Rev.
Ctat.
1991,
oh.
73,
pars.
613
Ct
seq.
215
ILCS
5/1
ct
seq.-)-
and
approved
by the U.S. Department of the Treasury as an acceptable
surety.
BOARD NOTE:
The U.S. Department of the Treasury lists
acceptable sureties in its Circular 570.
c)
The surety bond must be on the forms as specified in
Appendix A, Illustration C, D~or H.
d)
Any
payments made under the bond will be placed in the
landfill closure and postclosure fund within the State
Treasury.
e)
Conditions:
1)
The bond must guarantee that the owner or operator
will provide closure and postclosure care in
accordance with the closure and postclosure care
plans in the permit.
If the facility is a MSWLF
unit, then a corrective action bond must guarantee
that the owner or operator will implement
corrective action in accordance with Section
811.326.
The surety shall have the option of
providing closure and postclosure care
or
carrying out corrective action, or of paying the
penal
sum.
2)
The surety will become liable on the bond
obligation when, during the term of the bond,
the
owner or operator fails to perform as guaranteed
by the bond.
The owner or operator fails to
perform when the owner or operator:
A)
Abandons the site;
B)
Is adjudicated bankrupt;
C)
Fails to initiate closure of the site or
postclosure care or corrective action when
ordered to do so by the Board pursuant to
Title VII of the Act, or when ordered to do
so by a court of competent jurisdiction; or
D)
Notifies the Agency that it has initiated
closure or corrective action, or initiates
closure or corrective action, but fails to
close the site or provide postclosure care or
corrective action in accordance with the
12
closure
and
postclosure
care
or
corrective
action
plans.
E)
For
a
corrective
action
bond,
fails
to
implement corrective action at a MSWLF unit
in
accordance
with Section 811.326
f)
Penal
sum:
1)
The
penal
sum of
the bond must be in an amount at
least
equal
to
the
current
cost
estimate.
2)
The
Agency
shall
approve
a
reduction
in
the
penal
sum
whenever
the
current
cost
estimate
decreases.
g)
Term:
1)
The bond must be issued for a term of at least
five
years
and
must
not
be
cancelable
during that
term.
2)
If
the
owner
or
operator
fails
to
provide
substitute
financial
assurance
prior
to
expiration
of
a
bond,
the
term
of
the
bond
must
be
automatically
extended
for
one
twelve—month
period
starting
with
the
date
of
expiration
of
the
bond.
During
such
extension,
the
bond
will
cease
to
serve as financial assurance satisfying the
requirements
of
this
Part,
and
will
not
excuse
the
owner
or
operator
from
the
duty
to
provide
substitute financial assurance.
h)
Cure
of
default
and
refunds:
1)
The Agency shall release the surety
if,
after
the
surety becomes liable on the bond,
the owner or
operator or another person provides financial
assurance for closure and postclosure care of the
site
or
corrective
action
at
a
MSWLF
unit,
unless
the
Agency
determines
that
the closure or
postclosure care plan,
corrective action at a
MSWLF
unit,
or the amount of substituted financial
assurance is inadequate to provide closure and
postclosure care or implement corrective action at
a
MSWLf
unit
in
compliance
with
this
Part.
2)
After closure and postclosure care have been
completed in accordance with the closure and
postclosure care plans and the requirements of
this Part or after the completion
of corrective
action
at
a
MSWLF
unit
in
accordance
with
Section
811.326, the Agency shall refund any unspent money
13
which was paid into the “Landfill Closure and
Postclosure Fund”
by the surety.
i)
The surety will not be liable for deficiencies in the
performance of closure by the owner or operator after
the Agency releases the owner or operator from the
requirements of this Subpart.
Board Note.BOARD NOTE:
MSWLF
corrective action
language at subsection
(a)
is derived from 40 CFR
258.74
(b)(1)
(199~j).as amended at 60 Fed. Req.
17652
(Apr.
7.
1995).
The other clarifying changes reflect
the inclusion of financial assurance requirements for
implementing corrective action at MSWLF units under
this Section.
(Source:
Amended at 19 Ill. Reg.
________,
effective
___________
____________________________
)
Section 811.713
Letter of Credit
a)
An owner or operator may satisfy the requirements of
this Subpart by obtaining an irrevocable standby letter
of credit which conforms to the requirements of this
Section and submitting the letter to the Agency.
A
letter of credit obtained by an owner or operator of a
MSWLF unit must be effective before the initial receipt
of waste or before April
9,
19942
(the effective date
of the financial assurance requirements under RCRA
Subtitle D regulations), whichever is later,
in the
case of closure and post-closure care,
or no later than
120 days after the remedy has been selected in
accordance with the requirements of Section 811.325.
b)
The issuing institution shall be an entity which has
the authority to issue letters of credit and:
1)
Whose letter—of—credit operations are regulated by
the Illinois Commissioner of Banks and Trust
Companies pursuant to the Illinois Banking Act
(Ill. Rev.
Ctat.
1991,
oh.
17, pars.
301 at seq.
205
ILCS 5/1 ct seq.-)-
or,
2)
Whose deposits are insured by the Federal Deposit
Insurance Corporation or the Federal Savings and
Loan Insurance Corporation.
c)
Forms:
1)
The letter of credit must be on the forms
specified in Appendix A, Illustration E.
14
2)
The letter of credit must be accompanied by a
letter from the owner or operator, referring to
the letter of credit by number, the name and
address of the issuing institution, and the
effective date of the letter, and providing the
following information:
the name and address of
the site and the amount of funds assured for
closure and postclosure care of the site,
or for
corrective action at a MSWLF unit by the letter of
credit.
d)
Any
amounts drawn by the Agency pursuant to the letter
of credit will be deposited in the landfill closure and
postclosure
fund
within
the
State
Treasury.
e)
Conditions on which the Agency may draw on the letter
of
credit:
1)
The
Agency
shall
draw
on
the
letter
of
credit if
the owner or operator fails to perform closure or
postclosure care in accordance with the closure
and
postclosure
care
plans,
or
fails
to
implement
corrective action at a MSWLF unit in accordance
with Section 811.326.
2)
The Agency shall draw on the letter of credit when
the
owner
or
operator:
A)
Abandons the site;
B)
Is adjudicated bankrupt;
C)
Fails
to
initiate
closure
of
the
site
or
postclosure
care
or
corrective
action
when
ordered to do so by the Board pursuant to
Title
VII
of
the
Act,
or
when
ordered
to
do
so by a court of competent jurisdiction; or
D)
Notifies the Agency that it has initiated
closure or corrective action, or initiates
closure or corrective action, but fails to
Provide closure and postclosure care or
corrective action in accordance with the
closure and postclosure care or corrective
action plans.
E)
For
a
corrective
action
bond,
fails
to
implement
corrective
action
at
a
MSWLF
unit
in accordance with Section 811.326
f)
Amount:
15
1)
The letter of credit must be issued in an amount
at least equal to the current cost estimate.
2)
The Agency shall approve a reduction in the amount
whenever the current cost estimate decreases.
g)
Term:
1)
The letter of credit must be issued for a term of
at least five years and must be irrevocable during
that term.
2)
If the
owner
or operator fails to substitute
alternative financial assurance prior to
expiration of a letter of credit, the term of the
letter of credit must be automatically extended
for one twelve-month period starting with the date
of expiration.
During such extension, the letter
of credit will cease to serve as financial
assurance satisfying the requirements of this
Part,
and will not excuse the owner or operator
from the duty to provide substitute financial
assurance.
h)
Cure of default and refunds:
1)
The Agency shall release the financial institution
if, after the Agency is allowed to draw on the
letter of credit, the owner or operator or another
person provides financial assurance for closure
and postclosure care of the site or corrective
action at a MSWLF unit,
unless the Agency
determines that a plan or the amount of
substituted financial assurance is inadequate to
provide closure and postclosure care,
or implement
corrective action at a
MSWLF
unit,
as required by
this Part.
2)
After closure and postclosure care have been
completed in accordance with the closure and
postclosure care plans and the requirements of
this Part or after the completion of corrective
action at a MSWLF unit in accordance with Section
811.326, the Agency shall refund any unspent money
which was paid into the “Landfill Closure and
Postclosure Fund”
by the financial institution.
Board Notc.BOARD NOTE:
MSWLF corrective action
language
at
subsection
(a)
is derived from
40 CFR
258.74
(c)(1) (199~). as amended at 60 Fed. Req.
17652
(Apr.
7,
1995).
The other clarifying
changes reflect the inclusion of financial
16
assurance
requirements
for
implementing
corrective
action
at
MSWLF
units
under
this
Section.
(Source:
Amended
at
19
Ill.
Reg.
_______,
effective
__________
____________________________
)
IT
IS
SO
ORDERED.
I, Dorothy M. Gunn, Clerk of the Illinois Pollution Control
Board, certify that
above proposed opinion and order was
adopted onJthe
day of
7?~i
,
1995,
by
a
vote
of
iO
•
Dorothy
M./~unn,
Clerk
Illinois
~yLlution
Control
Board
