ILLINOIS POLLUTION CONTROL BOARD
August
3,
1995
RCPA SUBTITLE D UPDATE,
DELAYED)
EFFECTIVE DATE OF USEPA
)
R95-13
FINANCIAL ASSURANCE REGULATIONS
)
(Identical
in Substance Rules)
(4—7—95)
)
(Solid Waste——Landfill)
Adopted Rule.
Final
Order.
OPINION
AND
ORDER OF THE BOARD
(by G.T. 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 amends
the RCBA Subtitle D municipal solid waste landfill
(RCPA Subtitle
D)
regulations.
As discussed more fully below,
the amendments delay the effective date of the financial
assurance requirements until April
9,
1997.
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
(RCPA,
42 U.S.C. §~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 RCPA Subtitle D regulations on April
7,
1995.
Those amendments delayed 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 amended 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.
We note,
as is
further explained in the discussion entitled “Financial Assurance
and Impact of Deadline Extension”,
below on page
3,
that the
effective date for this amendment
is January
1,
1996.
In
addition to the federally-derived amendments
in this rulemaking,
the Board has made
a number of corrective and general
2
housekeeping amendments.
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 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 proposed the instant amendments on May
4,
1995.
We invited public comment on the amendments included in this
docket.
A Notice of Proposed Amendments appeared in the Illinois
Register on May 19,
1995,
at
19 Iii.
Reg.
6756.
The public
comment period ended 45 days after that Notice appeared in the
Register,
i.e.,
on July
3,
1995.
The Board received a single
comment on the proposal:
PC
1 Browning-Ferris Industries
(BFI), Midwest Region
(June
16,
1995,
by William R.
Uffelman, Divisional Vice—
President, Government Affairs)
PC
1 criticized the proposed amendments and suggested that
the Board withdraw the amendments,
so that all facilities that
have not demonstrated financial assurance would immediately be
required to do
so.
The Board has reviewed that comment,
and for
reasons that we explain,
we decline to revise the proposed
amendments based on the comment.
BFI states in summary in PC
1 as follows:
In postponing the Federal financial assurance deadline,
the
U.S.J
EPA did not suggest or envision extensions
by states
for the sole and exclusive benefit of
facilities owned by political subdivisions--the effect
of the proposed Illinois amendments.
.
.
.
If an
extension of financial assurance requirements is
adopted,
it should apply to all
facilities.
We believe
the proposed amendments
should be withdrawn,
and all
solid waste
landfills that have not demonstrated
financial responsibility should be promptly required to
do so.
In addition,
the
Board
should commit to the
prompt adoption of the
U.S.
EPA-developed local
government and corporate financial tests upon their
3
promulgation by the
U.S.
EPA.
The comment engages
in a long discussion of Congressional and
U.S. EPA intent,
and it criticizes the existing financial
assurance mechanisms in the Illinois rules,
yet
it does not focus
directly on the proposed regulation to indicate the way in which
the Board has deviated from the federal deadline extension so as
to cause
a disparate impact on privately—owned landfills.
This
comment essentially raises three issues that the Board must
address:
1.
Does Board adoption of the federal deadline extension
cause
a disparate impact on privately—owned landfills?
2.
Can the Board avoid adoption of the federally-extended
deadline?
3.
What can the Board do to modify the present financial
assurance mechanisms?
Financial Assurance and Impact of Deadline Extension
The original October
9,
1991
(56 Fed.
Reg.
51029)
federal
Subtitle D rules provided that the financial assurance
requirements were affective on April
9,
1994.
They applied to
all operating landfills,
except that federal and state
government—operated landfills were exempted.
U.S. EPA delayed
the effective date for financial assurance until April
9,
1995 on
October
1,
1993
(58 Fed. Reg.
51547)
.
In that delaying action,
certain small landfills were allowed
a later deadline for
compliance of October
9,
1995.
Again,
on April
7,
1995
(60 Fed.
Reg.
17652),
U.S. EPA extended the deadline until April
5,
1997
for all operating landfills.
These latest amendments are the
subject of this proceeding.
Illinois’ regulation of landfills predated the federal RCRP~
Subtitle D requirements.
Those regulations included requirements
for landfill financial assurance.
Section 21.1 of the Act
formerly exempted the state and its political subdivisions from
the landfill financial assurance requirements.
In 1993,
subsequent to the
1991 advent of the federal
regulations,
the General Assembly amended Section 21.1
so that
units of local government were no longer exempted from the
financial assurance requirements after the then-effective federal
deadline for financial assurance.
By a recent amendment,
in P.A.
89-200,
signed by Governor Edgar on July 21,
1995 and effective
January
1,
1996,
the General Assembly extended the compliance
deadline to correspond with subsequent federal amendments.
However,
those amendments did not affect the regulatory status of
landfills owned or operated by units
of local government until
the federal requirements become effective.
4
The extended federally-derived financial assurance deadline
for municipally—owned and operated landfills has a disparate
impact on privately-owned and operated landfills,
but only
because it delays the expiration of the disparity.
Illinois law
has required privately-owned and operated public landfills
to
maintain financial assurance since March
1,
1985.
This was
established by Section 21.1 of the Act and by the Board’s Section
27 general landfill regulations.
Section 21.1 exempted
government-owned landfills from the financial assurance
requirements.
This is the source of the disparity.
With the advent and evolution of the federal regulations,
Illinois landfill law and regulations have changed,
so that
Illinois facilities will be required to comply with the
minimum
federal financial assurance standards by the required effective
dates.
The federal regulations have never required financial
assurance for any facilities because U.S. EPA has repeatedly
extended the deadline for compliance.
Until the federal
financial assurance requirements become effective,
all remains
status
quo
ante in Illinois.
That the federally-derived
financial assurance requirements have not yet impacted landfills
operated by units of local government continues the existence of
the disparate impact.
Thus,
there is an impact of the financial assurance
requirements on privately-owned and operated landfills that does
not yet exist for publicly-owned and operated units.
However,
this difference in impact did not arise through the Illinois
landfill regulations.
Rather,
the General Assembly has
determined that units of local government were exempted from the
requirements until such
a time as federal law requires that they
become subject to those requirements.
The extension of the
deadline for financial assurance that is the subject of this
proceeding conforms the Illinois rules
to the federal rules.
In
so doing,
it will allow the continuation of the disparate impact
on privately-owned and operated landfills.
The Board’s Authority to Amend the Deadline Requirements
Section 22.40
(a)
requires the Board to amend the Illinois
municipal solid waste landfill
(MSWLF)
regulations to assure that
they remain no less stringent than the federal rules upon which
they are based.
The Board formerly incorporated the federal
deadlines for financial assurance as U.S. EPA established and
amended them,
in R93—10, and with the advent of
the April
7,
1995
action by U.S. EPA,
the Board is again revisiting the effective
date.
Our intent in fulfilling our mandate is
to assure three
basic things.
First,
the Board wants
to assure that the Illinois
landfill regulations are no less stringent than and not
inconsistent with the federal rules.
Second,
the Board must
assure consistency with the provisions of the Act.
Finally,
we
seek to assure that the MSWLF rules have no greater impact on
5
Illinois facilities than would the federal rules.
In fact,
the
Board would exceed its statutory authority under Section 22.40
if
we did not do so.
Examination of the amendments indicates that the Board has
provided all three assurances in this proceeding.
The effective
dates chosen derive directly from the federal dates,
so they are
equally as stringent and completely consistent.
This satisfies
the first point.
Second,
these amendments actually cause the
regulatory effective date to become consistent with Section 21.1
of the Act because the General Assembly recently amended the
statute.
P.A. 89—200 amended Section 21.1(a.5),
effective
January
1,
1995,
to replace the April
9,
1995 effective date with
a reference to “the effective date established by U.S. EPA”.
Finally, the present amendments are wholly derived from the
federal NSWLF regulations and are consistent with and no more
stringent than those rules.
The existing impact on privately—
owned and operated facilities
is not derived from the federal
MSWLF regulations.
Rather,
the impact
is from the pre-existing
Section 27—derived landfill rules.
If the Board were to follow BFI’s suggestion and withdraw
the amendments,
the MSWLF-derived segments of the Illinois
landfill regulations would become more stringent than the federal
part 258 rules.
The Board is not free to ignore our mandate
under Section 22.40(a)
and produce this result.
The only way the
Board can make the Illinois landfill regulations more stringent
than the federal rules would be by a Section 27 general
rulemaking proceeding.
It
is the impact of the pre—existing
Section 27 landfill regulations and the fact that the former
federal effective date also imposes that burden on municipally-
owned facilities of which BFI complains.
That is beyond the
scope of this proceeding.
Therefore,
the Board is not free to withdraw the present
amendments.
Doing so would violate our mandate under Section
22.40 of the Act.
Withdrawal would also result in an
inconsistency between the statutory deadline for financial
assurance,
in Section 21.1(a.5),
as amended,
and the deadline in
the landfill rules.
Imposing the financial assurance
requirements on publicly-owned and operated landfills prior to
April
9,
1997 would make the Illinois rules more stringent than
the federal MSWLF rules,
a result that is only possible through a
Section 27 general rulemaking,
The Board’s Authority to Amend the Financial Assurance Mechanisms
The Board adopted the modern version of the Illinois
landfill regulations on August
17,
1990,
in R88-7.
Those rules
included financial assurance mechanisms and requirements.
(See
35
Ill.
Adm. Code 8ll.Subpart G.)
As was correctly asserted by
BFI,
the Board used the established financial mechanisms of the
6
RCRA Subtitle C hazardous waste rules
as
a model for the landfill
financial assurance provisions.
That was a Section 27
general
rulemaking proceeding.
Until U.S. EPA amends the federal
financial assurance
mechanisms,
there
is no basis for the Board to engage in
identical—in-substance amendments to the
Illinois rules.
Whereas
we can establish landfill regulations that are more stringent
than the federal rules,
we must undertake such an action under
Section 27 of the Act, by general rulemaking,
rather than by
Section 22.40(a) identical—in-substance procedures.
That is the
only alternative for amending the Illinois regulations in the
meantime.
No person has
filed a petition for the Board to
commence such
a proceeding.
This is essentially the same result
we drew in R93-10, on September
15,
1993, with regard to comments
on the financial responsibility requirements
in the context of an
identical-in-substance proceeding.
In summary,
the Board will not revise the amendments in
response to PC
1.
The BFI comments would have the Board ignore
our statutory mandate and contemporaneous legislative activities
to the same end.
The comments raise further issues that are also
not the proper subject of this proceeding.
The proper setting
for consideration of some of the issues raised by PC
1 is in the
context of
a Section 27 general rulemaking.
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
7
SUBPART B:
INERT WASTE LANDFILLS
Section
811.201
811.202
811.203
811.204
811.205
811.206
811.207
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
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
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
Section
811. 401
811. 402
811.403
811. 404
811.405
811.406
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
Section
8
811.501
811.502
811.503
811.504
811.505
811.506
811.507
811.508
811.509
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 and Applicability
Duties and Qualifications of Key Personnel
Inspection Activities
Sampling Requirements
Documentation
Foundations and Subbases
Compacted Earth Liners
Geomembranes
Leachate Collection Systems
SUBPART
G:
FINANCIAL ASSURANCE
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
B Certificate of Acknowledgment
C Forfeiture Bond
D Performance Bond
E Irrevocable Standby Letter of Credit
F Certificate of Insurance for Closure and/or
Postclosure Care
G Operator’s Bond Without Surety
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~.r Ft~t~
1~)R~L
r~h
111
1/2.
r~ir~
1flQ~. 1fl21. 1fl21L
Illustration
Illustration
Illustration
Illustration
Illustration
Illustration
Illustration
1022,
1022-.17,
1028.1
rind 1027) 415
ILCS 5/5,
21, 21.1,22,
22.17,
28..
& 27.
9
SOURCE:
Adopted in R88—7
at 14
Ill. Reg.
15861,
effective
September 18,
1990;
amended in R92-19 at
17
Ill. Reg.
12413,
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.
10
e)
Definition:
“Assumed closure date” means the date
during the next permit term on which the costs of
premature final closure of the facility,
in accordance
with the standards of this
Part,
will be greatest.
f)
On or after April
9, 199~7,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, l99~7.
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
(199.2.4),
as amended at
60 Fed.
Reg. 17652
(Apr.
7,
1995)).
P.A.
89—200, signed by the Governor on July
21,
1995 and effective January
1,
1996,
amended the
deadline for financial assurance for MSWLFs from April
9,
1995 to April
9,
1997.
BOARD MOTE:
Thc compliancc datco opccificd in
gubgcctiono
(f)
and
(g) reflcct the rcviocd datco
propoced by thc USEPA in the Fcdcral Rcgi~tcr
Notification publiohcd on July 28,
1993
(occ
58 FR
40568).
The Board notco that the rcviocd datco arc
included in the rcgulationo
in order to be identical in
oubotancc with thc fcdcral Subtitlc D program.
Thc
Board rccognizco that the propoccd rcvioiono arc not
yet
finn1~
r-Tntjc’-jc’r
i-bc’
Pc~.-~rrl,ni-ir~ir~il-rnihnl-
lhr’
1~PY\’,
propo~.’.
r
————
—~~-—
1 ~:i1Ibecome effective before the end
of the poct—adoption comment period of the inatant
-u1emakinc~.
Thug-
if there arc any c’hanac’~’
in
1-br’
WLOII
Ui.
L11L~
LeU~r~.1J.
ruifl~
-
LI1L~
~UULU
W1A.
iing changcc in the ingtant regulationo.
(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
1
,
—
—
—
—
—
•1
—
—
A—
~
—
fl
—
—
-—
_1
-
~1
1
1
11
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:
1)
A trust Fund
(see Section 811.710);
2)
A surety Bond Guaranteeing Payment
(see Section
811.711)
;
3)
A surety Bond Guaranteeing Performance
(see
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,
19947
(the effective date of thege
rcquircmcnto)
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.
12
Board Notc.BOARD NOTE:
Subsections
(b) and
(c)
are
derived from 40 CFR 258.74(1)
(199.2.4).
Amendments
prompted by amendments to 40 CFR 258.74 (a) (5)
(1994),
as amended at 60 Fed. Req.
17652
(Apr.
7,
1995)
.
P.A.
89-200,
signed by the Governor on July 21,
1995 and
effective January 1,
1996,
amended the deadline for
financial assurance for MSWLFs from April
9,
1995 to
April
9,
1997.
(Source:
Amended at 19 Ill. Reg.
________,
effective
__________
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,
19947
(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.
Rcv.
Stat.
1991,
ph.
73,
paro.
613 Ct ocq.
215
ELCS 5/1 Ct ~cq.-)-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
13
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;
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
14
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
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 Aaction
language at subsection
(a)
is derived from 40 CFR
258.74(b) (1)
(199.2.4),
as amended at
60 Fed. Reg.
17652
(Apr.
7,
1995)
.
P.A.
89—200, signed by the
Governor on July 21,
1995 and effective January
1,
1996,
amended the deadline for financial assurance
for MSWLFs
from April
9,
1995 to April
9,
1997.
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
___________
15
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,
19947
(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. Stat.
1991,
ch.
73,
parc.
613 Ct
ccq.
215
ILCS 5/1
Ct oeq.4-
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:
16
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
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
17
assurance for closure and postclosure care of the
site or corrective action at
a MSWLF unit,
unless
the Agency determines that the clos~ureor
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 NSWLf 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
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 Notc.BOARD NOTE:
MSWLF corrective action
language at subsection
(a)
is derived from 40 CFR
258.74
(b) (1)
(1992.4),
as amended at
60
Fed.
Reg.
17652
(Apr.
7,
1995).
P.A.
89-200,
signed by the Governor on
July 21,
1995 and effective January
1,
1996,
amended
the deadline for financial assurance for MSWLFs from
April
9,
1995 to April
9,
1997.
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,
19947
(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.
18
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.
Stat.
1991,
ph.
17,
parc.
301 Ct ceg.
205
ILCS 5/1 Ct ceg.-)-
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.
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
19
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:
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
20
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)
(1992.4),
as amended at
60 Fed. Reg.
17652
(Apr.
7,
1995)
.
P.A.
89—200,
signed by the
Governor on July 21,
1995 and effective January 1,
1996,
amended the deadline for financial assurance
for MSWLFs from April
9,
1995 to April
9,
1997.
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
___________
IT IS SO ORDERED.
Board Member
J. Theodore Meyer dissented.
I, Dorothy M. Gunn,
Clerk of the Illinois Pollution Control
Board,
certify that the abo~reopinion and order was adopted on
the
~3’~??’
day of
~ci~’-~~
,
1995, by a vote of
.~Z—/
-
Dorothy M. ,~inn, ClerrC
Illinois P~llutionControl Board
