SUBPART E: MANIFEST SYSTEM, RECORDKEEPING AND REPORTING
| Section 724.171 | Use of Manifest System |
| a) | Receipt of manifested hazardous waste. |
| If a facility receives hazardous waste accompanied by a manifest, the owner, operator, or its agent must sign and date the manifest, as indicated in subsection (a)(2) | |
| If a facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator, or its agent must do the following: | |
| It must sign and date, by hand, each copy of the manifest; | |
| It must note any discrepancies (as defined in Section 724.172 | |
| It must immediately give the transporter at least one copy of the manifest; | |
| It must send a copy of the manifest to the generator within 30 days after delivery; and | |
| It must retain at the facility a copy of each manifest for at least three years after the date of delivery. | |
| If a facility receives hazardous waste imported from a foreign source, the receiving facility must mail a copy of the manifest to the following address within 30 days after delivery: International Compliance Assurance Division, OFA/OECA (2254A), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460. | |
| b) | If a facility receives, from a rail or water (bulk shipment) transporter, hazardous waste that is accompanied by a shipping paper containing all the information required on the manifest (excluding the USEPA identification numbers, generator’s certification, and signatures), the owner or operator, or the owner or operator’s agent, must do the following: |
| 1) | It must sign and date each copy of the manifest or shipping paper (if the manifest has not been received) to certify that the hazardous waste covered by the manifest or shipping paper was received; |
| 2) | It must note any significant discrepancies (as defined in Section 724.172(a)) in the manifest or shipping paper (if the manifest has not been received) on each copy of the manifest or shipping paper; |
BOARD NOTE: The Board does not intend that the owner or operator of a facility whose procedures under Section 724.113(c) include waste analysis must perform that analysis before signing the shipping paper and giving it to the transporter. Section 724.172(b), however, requires reporting an unreconciled discrepancy discovered during later analysis.
| 3) | It must immediately give the rail or water (bulk shipment) transporter at least one copy of the manifest or shipping paper (if the manifest has not been received); |
BOARD NOTE: Section 722.123(c) requires the generator to send three copies of the manifest to the facility when hazardous waste is sent by rail or water (bulk shipment).
| 5) | Retain at the facility a copy of the manifest and shipping paper (if signed in lieu of the manifest at the time of delivery) for at least three years from the date of delivery. |
| c) | Whenever a shipment of hazardous waste is initiated from a facility, the owner or operator of that facility must comply with the requirements of 35 Ill. Adm. Code 722. |
BOARD NOTE: The provisions of 35 Ill. Adm. Code 722.134 are applicable to the on-site accumulation of hazardous wastes by generators. Therefore, the provisions of Section 722.134 only apply to owners or operators that are shipping hazardous waste that they generated at that facility.
| d) | Within three working days after the receipt of a shipment subject to Subpart H of 35 Ill. Adm. Code 722, the owner or operator of the facility must provide a copy of the tracking document bearing all required signatures to the notifier; to the Office of Enforcement and Compliance Assurance, Office of Compliance, Enforcement Planning, Targeting and Data Division (2222A), Environmental Protection Agency, 401 M St., SW, Washington, DC 20460; to the Bureau of Land, Division of Land Pollution Control, Illinois Environmental Protection Agency, P.O. Box 19276, Springfield, IL 62794-9276; and to competent authorities of all other concerned countries. The original copy of the tracking document must be maintained at the facility for at least three years from the date of signature. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.172 | Manifest Discrepancies |
| “Manifest discrepancies” are defined as any one of the following: | |
| Significant differences (as defined by subsection (b) | |
| Rejected wastes, which may be a full or partial shipment of hazardous waste that the treatment, storage, or disposal facility cannot accept; or | |
| Container residues, which are residues that exceed the quantity limits for empty containers set forth in 35 Ill. Adm. Code 721.107(b). | |
| “Significant differences in quantity” are defined as the appropriate of the following: for bulk waste, variations greater than 10 percent in weight; or, for batch waste, any variation in piece count, such as a discrepancy of one drum in a truckload. “Significant differences in type” are defined as obvious differences that can be discovered by inspection or waste analysis, such as waste solvent substituted for waste acid, or as toxic constituents not reported on the manifest or shipping paper. | |
| Upon discovering a significant difference in quantity or type, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operator must immediately submit to the Agency a letter describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue. | |
| Rejection of hazardous waste. | |
| Upon rejecting waste or identifying a container residue that exceeds the quantity limits for empty containers set forth in 35 Ill. Adm. Code 721.107(b), the facility must consult with the generator prior to forwarding the waste to another facility that can manage the waste. If it is impossible to locate an alternative facility that can receive the waste, the facility may return the rejected waste or residue to the generator. The facility must send the waste to the alternative facility or to the generator within 60 days after the rejection or the container residue identification. | |
| While the facility is making arrangements for forwarding rejected wastes or residues to another facility under this Section, it must ensure that either the delivering transporter retains custody of the waste, or the facility must provide for secure, temporary custody of the waste, pending delivery of the waste to the first transporter designated on the manifest prepared under subsection | |
| Except as provided in subsection | |
| Write the generator’s USEPA identification number in Item 1 of the new manifest. Write the generator’s name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator’s site address, then write the generator’s site address in the designated space in Item 5. | |
| Write the name of the alternate designated facility and the facility’s USEPA identification number in the designated facility block (Item 8) of the new manifest. | |
| Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment. | |
| Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a). | |
| Write the USDOT description for the rejected load or the residue in Item 9 (USDOT Description) of the new manifest and write the container types, quantity, and volumes of waste. | |
| Sign the Generator’s/Offeror’s Certification to certify, as the offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation. | |
| For full load rejections that are made while the transporter remains present at the facility, the facility may forward the rejected shipment to the alternate facility by completing Item 18b of the original manifest and supplying the information on the next destination facility in the Alternate Facility space. The facility must retain a copy of this manifest for its records, and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with subsections | |
| Except as provided in subsection | |
| Write the facility’s USEPA identification number in Item 1 of the new manifest. Write the generator’s name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator’s site address, then write the generator’s site address in the designated space for Item 5. | |
| Write the name of the initial generator and the generator’s USEPA identification number in the designated facility block (Item 8) of the new manifest. | |
| Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment. | |
| Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a). | |
| Write the USDOT description for the rejected load or the residue in Item 9 (USDOT Description) of the new manifest and write the container types, quantity, and volumes of waste. | |
| Sign the Generator’s/Offeror’s Certification to certify, as offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation. | |
| For full load rejections that are made while the transporter remains at the facility, the facility may return the shipment to the generator with the original manifest by completing Item 18b of the manifest and supplying the generator’s information in the Alternate Facility space. The facility must retain a copy for its records and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with subsections | |
| If a facility rejects a waste or identifies a container residue that exceeds the quantity limits for empty containers set forth in 35 Ill. Adm. Code 721.107(b) after it has signed, dated, and returned a copy of the manifest to the delivering transporter or to the generator, the facility must amend its copy of the manifest to indicate the rejected wastes or residues in the discrepancy space of the amended manifest. The facility must also copy the manifest tracking number from Item 4 of the new manifest to the Discrepancy space of the amended manifest, and must re-sign and date the manifest to certify to the information as amended. The facility must retain the amended manifest for at least three years from the date of amendment, and must, within 30 days, send a copy of the amended manifest to the transporter and generator that received copies prior to their being amended. | |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.173 | Operating Record |
| a) | The owner or operator must keep a written operating record at the facility. |
| b) | The following information must be recorded as it becomes available and maintained in the operating record |
| 1) | A description and the quantity of each hazardous waste received and the |
| 2) | The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram |
BOARD NOTE: See Section 724.219 for related requirements.
| 3) | Records and results of waste analyses and waste determinations performed as specified in Sections 724.113, 724.117, 724.414, 724.441, 724.934, 724.963, and 724.983 and in 35 Ill. Adm. Code 728.104(a) and 728.107; |
| 4) | Summary reports and details of all incidents that require implementing the contingency plan, as specified in Section 724.156(j); |
| 5) | Records and results of inspections, as required by Section 724.115(d) (except these data need to be kept only three years); |
| 6) | Monitoring, testing, or analytical data and corrective action data where required by Subpart F of this Part or Sections 724.119, 724.291, 724.293, 724.295, 724.322, 724.323, 724.326, 724.352 through 724.354, 724.376, 724.378, 724.380, 724.402 through 724.404, 724.409, |
| 7) | For off-site facilities, notices to generators as specified in Section 724.112(b); |
| 8) | All closure cost estimates under Section 724.242 and, for disposal facilities, all post-closure care cost estimates under Section 724.244. This information must be maintained in the operating record until closure of the facility; |
| 9) | A certification by the permittee, no less often than annually: that the permittee has a program in place to reduce the volume and toxicity of hazardous waste that the permittee generates, to the degree the permittee determines to be economically practicable, and that the proposed method of treatment, storage, or disposal is that practicable method currently available to the permittee that minimizes the present and future threat to human health and the environment; |
| 10) | Records of the quantities |
| 11) | For an off-site treatment facility, a copy of the notice, and the certification and demonstration, if applicable, required of the generator or the owner or operator under 35 Ill. Adm. Code 728.107 or 728.108; |
| 12) | For an on-site treatment facility, the information contained in the notice (except the manifest number), and the certification and demonstration, if applicable, required of the generator or the owner or operator under 35 Ill. Adm. Code 728.107 or 728.108; |
| 13) | For an off-site land disposal facility, a copy of the notice, and the certification and demonstration, if applicable, required of the generator or the owner or operator of a treatment facility under 35 Ill. Adm. Code 728.107 or 728.108, whichever is applicable; |
| 14) | For an on-site land disposal facility, the information contained in the notice required of the generator or owner or operator of a treatment facility under 35 Ill. Adm. Code 728.107, except for the manifest number, and the certification and demonstration, required under 35 Ill. Adm. Code 728.108, whichever is applicable; |
| 15) | For an off-site storage facility, a copy of the notice, and the certification and demonstration if applicable, required of the generator or the owner or operator under 35 Ill. Adm. Code 728.107 or 728.108; |
| 16) | For an on-site storage facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required of the generator or the owner or operator under 35 Ill. Adm. Code 728.107 or 728.108; |
| 17) | Any records required under Section 724.101(j)(13) |
| 18) | Monitoring, testing, or analytical data where required by Section 724.447 must be maintained in the operating record for five years; and |
| 19) | Certifications, as required by Section 724.296(f), must be maintained in the operating record until closure of the facility. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.175 | Annual Facility Activities Report |
| The owner or operator must prepare and submit a single copy of an annual facility activities report to the Agency by March 1 of each year. The report form supplied by the Agency must be used for this report. The annual facility activities report must cover facility activities during the previous calendar year and must include the following information: | |
| a) | The USEPA identification number, name, and address of the facility; |
| b) | The calendar year covered by the report; |
| c) | For off-site facilities, the USEPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year; for imported shipments, the report must give the name and address of the foreign generator; |
| d) | A description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this information must be listed by USEPA identification number of each generator; |
| e) | The method of treatment, storage, or disposal for each hazardous waste; |
| f) | |
| This subsection (f) corresponds with 40 CFR 264.75(f), which USEPA has designated as “reserved.” This statement maintains structural consistency with the USEPA rules; | |
| g) | The most recent closure cost estimate under Section 724.242, and, for disposal facilities, the most recent post-closure cost estimate under Section 724.244; |
| h) | For generators that treat, store or dispose of hazardous waste on-site, a description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated; |
| i) | For generators that treat, store or dispose of hazardous waste on-site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years, to the extent such information is available for years prior to 1984; and |
| j) | The certification signed by the owner or operator of the facility or the owner or operator’s authorized representative. |
BOARD NOTE: Corresponding 40 CFR 264.75 requires biennial reporting. The Board has required annual reporting, since Section 20.1 of the Act [415 ILCS 5/20.1 (2006)] requires the Agency to assemble annual reports, and only annual facility activities reports will enable the Agency to fulfill this mandate.
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.176 | Unmanifested Waste Report |
| 1) | The USEPA identification number, name, and address of the facility; |
| 2) | The date the facility received the waste; |
| 3) | The USEPA identification number, name, and address of the generator and the transporter, if available; |
| 4) | A description and the quantity of each unmanifested hazardous waste the facility received; |
| 5) | The method of treatment, storage, or disposal for each hazardous waste; |
| 6) | The certification signed by the owner or operator of the facility or its authorized representative; and |
| 7) | A brief explanation of why the waste was unmanifested, if known. |
| b) | This subsection (b) corresponds with 40 CFR 264.76(b), which USEPA has marked “reserved.” This statement maintains structural consistency with the corresponding federal regulations. |
BOARD NOTE: Small quantities of hazardous waste are excluded from regulation under this Part and do not require a manifest. Where a facility receives unmanifested hazardous wastes, USEPA has suggested that the owner or operator obtain from each generator a certification that the waste qualifies for exclusion. Otherwise,
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
SUBPART F: RELEASES FROM SOLID WASTE MANAGEMENT UNITS
| Section 724.197 | General Groundwater Monitoring Requirements |
The owner or operator must comply with the following requirements for any groundwater monitoring program developed to satisfy Section 724.198, 724.199, or 724.200.
| a) | The groundwater monitoring system must consist of a sufficient number of wells, installed at appropriate locations and depths to yield groundwater samples from the uppermost aquifer that fulfill the following requirements: |
| 1) | They represent the quality of background |
| A) | Hydrogeologic conditions do not allow the owner or operator to determine what wells are upgradient; or |
| B) | Sampling at other wells will provide an indication of background groundwater quality that is as representative or more representative than that provided by the upgradient wells; |
| 2) | They represent the quality of groundwater passing the point of compliance; and |
| 3) | They allow for the detection of contamination when hazardous waste or hazardous constituents have migrated from the hazardous waste management area to the uppermost aquifer. |
| b) | If a facility contains more than one regulated unit, separate groundwater monitoring systems are not required for each regulated unit provided that provisions for sampling the groundwater in the uppermost aquifer will enable detection and measurement at the compliance point of hazardous constituents from the regulated units that have entered the groundwater in the uppermost aquifer. |
| c) | All monitoring wells must be cased in a manner that maintains the integrity of the monitoring well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of groundwater samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater. |
| d) | The groundwater monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide a reliable indication of groundwater quality below the waste management area. At a minimum the program must include procedures and techniques for the following: |
| 1) | Sample collection; |
| 2) | Sample preservation and shipment; |
| 3) | Analytical procedures; and |
| 4) | Chain of custody control. |
| e) | The groundwater monitoring program must include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measure hazardous constituents in groundwater samples. |
| f) | The groundwater monitoring program must include a determination of the groundwater surface elevation each time groundwater is sampled. |
| g) | In detection monitoring or where appropriate in compliance monitoring, data on each hazardous constituent specified in the permit will be collected from background wells and wells at the compliance points. The number and kinds of samples collected to establish background must be appropriate for the form of statistical test employed, following generally accepted statistical principles. The sample size must be as large as necessary to ensure with reasonable confidence that a contaminant release to groundwater from a facility will be detected. The owner or operator will determine an appropriate sampling procedure and interval for each hazardous constituent listed in the facility permit that must be specified in the unit permit upon approval by the Agency. This sampling procedure must fulfill the following requirements: |
| 1) | It may be a sequence of at least four samples, taken at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, by reference to the uppermost aquifer’s effective porosity, hydraulic conductivity and hydraulic gradient, and the fate and transport characteristics of the potential contaminants; or |
| 2) | It may be an alternate sampling procedure proposed by the owner or operator and approved by the Agency. |
| h) | The owner or operator must specify one of the following statistical methods to be used in evaluating groundwater monitoring data for each hazardous constituent that, upon approval by the Agency, will be specified in the unit permit. The statistical test chosen must be conducted separately for each hazardous constituent in each well. Where practical quantification limits (pqls) are used in any of the following statistical procedures to comply with subsection (i)(5) of this Section, the pql must be proposed by the owner or operator and approved by the Agency. Use of any of the following statistical methods must adequately protect human health and the environment and must comply with the performance standards outlined in subsection (i) of this Section. |
| 1) | A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well’s mean and the background mean levels for each constituent. |
| 2) | An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well’s median and the background median levels for each constituent. |
| 3) | A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit. |
| 4) | A control chart approach that gives control limits for each constituent. |
| 5) | Another statistical test method submitted by the owner or operator and approved by the Agency. |
| i) | Any statistical method chosen pursuant to subsection (h) of this Section for specification in the unit permit must comply with the following performance standards, as appropriate: |
| 1) | The statistical method used to evaluate groundwater monitoring data must be appropriate for the distribution of chemical parameters or hazardous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner or operator to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed. |
| 2) | If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test must be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experimentwise error rate for each testing period must be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals or control charts. |
| 3) | If a control chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter value must be proposed by the owner or operator and approved by the Agency if the Agency finds it to adequately protect human health and the environment. |
| 4) | If a tolerance interval or a prediction interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, must be proposed by the owner or operator and approved by the Agency if the Agency finds these parameters to adequately protect human health and the environment. These parameters will be determined after considering the number of samples in the background database, the data distribution, and the range of the concentration values for each constituent of concern. |
| 5) | The statistical method must account for data below the limit of detection with one or more statistical procedures that adequately protect human health and the environment. Any practical quantification limit (pql) approved by the Agency pursuant to subsection (h) of this Section that is used in the statistical method must be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility. |
| 6) | If necessary, the statistical method must include procedures to control or correct for seasonal and spatial variability, as well as temporal correlation in the data. |
| j) | Groundwater monitoring data collected in accordance with subsection (g) of this Section, including actual levels of constituents, must be maintained in the facility operating record. The Agency must specify in the permit when the data must be submitted for review. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.198 | Detection Monitoring Program |
| An owner or operator required to establish a detection monitoring program under this Subpart F must, at a minimum, discharge the following responsibilities: | |
| a) | The owner or operator must monitor for indicator parameters (e.g., specific conductance, total organic carbon, or total organic halogen), waste constituents or reaction products that provide a reliable indication of the presence of hazardous constituents in groundwater. The Agency must specify the parameters or constituents to be monitored in the facility permit, after considering the following factors: |
| 1) | The types, quantities, and concentrations of constituents in wastes managed at the regulated unit; |
| 2) | The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area; |
| 3) | The detectability of indicator parameters, waste constituents, and reaction products in groundwater; and |
| 4) | The concentrations or values and coefficients of variation of proposed monitoring parameters or constituents in the groundwater background. |
| b) | The owner or operator must install a groundwater monitoring system at the compliance point as specified under Section 724.195. The groundwater monitoring system must comply with Sections 724.197(a)(2), 724.197(b), and 724.197(c). |
| c) | The owner or operator must conduct a groundwater monitoring program for each chemical parameter and hazardous constituent specified in the permit pursuant to subsection (a) of this Section in accordance with Section 724.197(g). The owner or operator must maintain a record of groundwater analytical data, as measured and in a form necessary for the determination of statistical significance under Section 724.197(h). |
| d) | The Agency must specify the frequencies for collecting samples and conducting statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous constituent specified in the permit conditions under subsection (a) of this Section in accordance with Section 724.197(g). |
| e) | The owner or operator must determine the groundwater flow rate and direction in the uppermost aquifer at least annually. |
| f) | The owner or operator must determine whether there is statistically significant evidence of contamination for any chemical parameter or hazardous constituent specified in the permit pursuant to subsection (a) of this Section at a frequency specified under subsection (d) of this Section. |
| 1) | In determining whether statistically significant evidence of contamination exists, the owner or operator must use the methods specified in the permit under Section 724.197(h). These methods must compare data collected at the compliance points to the background groundwater quality data. |
| 2) | The owner or operator must determine whether there is statistically significant evidence of contamination at each monitoring well at the compliance point within a reasonable period of time after completion of sampling. The Agency must specify in the facility permit what period of time is reasonable, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples. |
| g) | If the owner or operator determines pursuant to subsection (f) of this Section that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified pursuant to subsection (a) of this Section at any monitoring well at the compliance point, the owner or operator must do the following: |
| 1) | Notify the Agency of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination. |
| 2) | Immediately sample the groundwater in all monitoring wells and determine whether constituents in the list of Appendix I of this Part are present, and if so, in what concentration. However, the Agency must allow sampling for a site-specific subset of constituents from the Appendix I list of this Part and for other representative or related waste constituents if it determines that sampling for that site-specific subset of contaminants and other constituents is more economical and equally effective for determining whether groundwater contamination has occurred. |
| 3) | For any compounds in Appendix I of this Part found in the analysis pursuant to subsection (g)(2) of this Section, the owner or operator may resample within one month or at an alternative site-specific schedule approved by the Agency and repeat the analysis for those compounds detected. If the results of the second analysis confirm the initial results, then these constituents will form the basis for compliance monitoring. If the owner or operator does not resample for the compounds |
| 4) | Within 90 days, submit to the Agency an application for a permit modification to establish a compliance monitoring program meeting the requirements of Section 724.199. The application must include the following information: |
| A) | An identification of the concentration of any constituent in Appendix I of this Part detected in the groundwater at each monitoring well at the compliance point; |
| B) | Any proposed changes to the groundwater monitoring system at the facility necessary to meet the requirements of Section 724.199; |
| C) | Any proposed additions or changes to the monitoring frequency, sampling and analysis procedures or methods, or statistical methods used at the facility necessary to meet the requirements of Section 724.199; |
| D) | For each hazardous constituent detected at the compliance point, a proposed concentration limit under Section 724.194(a)(1) or (a)(2), or a notice of intent to seek an alternate concentration limit under Section 724.194(b). |
| 5) | Within 180 days, submit the following to the Agency: |
| A) | All data necessary to justify an alternate concentration limit sought under Section 724.194(b); and |
| B) | An engineering feasibility plan for a corrective action program necessary to meet the requirement of Section 724.200, unless the following is true: |
| i) | All hazardous constituents identified under subsection (g)(2) of this Section are listed in Table 1 of Section 724.194 and their concentrations do not exceed the respective values given in that table; or |
| ii) | The owner or operator has sought an alternate concentration limit under Section 724.194(b) for every hazardous constituent identified under subsection (g)(2) of this Section. |
| 6) | If the owner or operator determines, pursuant to subsection (f) of this Section, that there is a statistically significant difference for chemical parameters or hazardous constituents specified pursuant to subsection (a) of this Section at any monitoring well at the compliance point, the owner or operator may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis or statistical evaluation, or natural variation in the groundwater. The owner or operator may make a demonstration under this subsection (g) in addition to, or in lieu of, submitting a permit modification application under subsection (g)(4) of this Section; however, the owner or operator is not relieved of the requirement to submit a permit modification application within the time specified in subsection (g)(4) of this Section unless the demonstration made under this subsection (g) successfully shows that a source other than a regulated unit caused the increase, or that the increase resulted from error in sampling, analysis, or evaluation. In making a demonstration under this subsection (g), the owner or operator must do the following: |
| A) | Notify the Agency in writing, within seven days of determining statistically significant evidence of contamination at the compliance point, that the owner or operator intends to make a demonstration under this subsection (g); |
| B) | Within 90 days, submit a report to the Agency that demonstrates that a source other than a regulated unit caused the contamination or that the contamination resulted from error in sampling, analysis, or evaluation; |
| C) | Within 90 days, submit to the Agency an application for a permit modification to make any appropriate changes to the detection monitoring program facility; and |
| D) | Continue to monitor in accordance with the detection monitoring program established under this Section. |
| h) | If the owner or operator determines that the detection monitoring program no longer satisfies the requirements of this Section, the owner or operator must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.199 | Compliance Monitoring Program |
| An owner or operator required to establish a compliance monitoring program under this Subpart F must, at a minimum, discharge the following responsibilities: | |
| a) | The owner or operator must monitor the groundwater to determine whether regulated units are in compliance with the groundwater protection standard under Section 724.192. The Agency must specify the groundwater protection standard in the facility permit, including the following: |
| 1) | A list of the hazardous constituents identified under Section 724.193; |
| 2) | Concentration limits under Section 724.194 for each of those hazardous constituents; |
| 3) | The compliance point under Section 724.195; and |
| 4) | The compliance period under Section 724.196. |
| b) | The owner or operator must install a groundwater monitoring system at the compliance point as specified under Section 724.195. The groundwater monitoring system must comply with Section 724.197(a)(2), 724.197(b), and 724.197(c). |
| c) | The Agency must specify the sampling procedures and statistical methods appropriate for the constituents and facility, consistent with Section 724.197(g) and (h). |
| 1) | The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with Section 724.297(g). |
| 2) | The owner or operator must record groundwater analytical data as measured and in a form necessary for the determination of statistical significance under Section 724.197(h) for the compliance period of the facility. |
| d) | The owner or operator must determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the permit, pursuant to subsection (a) of this Section, at a frequency specified under subsection (f) of this Section. |
| 1) | In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the methods specified in the permit under Section 724.197(h). The methods must compare data collected at the compliance points to a concentration limit developed in accordance with Section 724.194. |
| 2) | The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after completion of the sampling. The Agency must specify that time period in the facility permit, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples. |
| e) | The owner or operator must determine the groundwater flow rate and direction in the uppermost aquifer at least annually. |
| f) | The Agency must specify the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with Section 724.197(g). |
| g) | The owner or operator must annually |
| h) | If the owner or operator determines, pursuant to subsection (d) of this Section that any concentration limits under Section 724.194 are being exceeded at any monitoring well at the point of compliance, the owner or operator must do the following: |
| 1) | Notify the Agency of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded. |
| 2) | Submit to the Agency an application for a permit modification to establish a corrective action program meeting the requirements of Section 724.200 within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the Agency under Section |
| A) | A detailed description of corrective actions that will achieve compliance with the groundwater protection standard specified in the permit under subsection (a) of this Section; and |
| B) | A plan for a groundwater monitoring program that will demonstrate the effectiveness of the corrective action. Such a groundwater monitoring program may be based on a compliance monitoring program developed to meet the requirements of this Section. |
| i) | If the owner or operator determines, pursuant to subsection (d) of this Section, that the groundwater concentration limits under this Section are being exceeded at any monitoring well at the point of compliance, the owner or operator may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis, or statistical evaluation, or natural variation in groundwater. In making a demonstration under this subsection (i), the owner or operator must do the following: |
| 1) | Notify the Agency in writing within seven days that it intends to make a demonstration under this subsection (i); |
| 2) | Within 90 days, submit a report to the Agency that demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the standards resulted from error in sampling, analysis, or evaluation; |
| 3) | Within 90 days, submit to the Agency an application for a permit modification to make any appropriate changes to the compliance monitoring program at the facility; and |
| 4) | Continue to monitor in accord with the compliance monitoring program established under this Section. |
| j) | If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this Section, the owner or operator must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.200 | Corrective Action Program |
An owner or operator required to establish a corrective action program pursuant to this Subpart F must, at a minimum, discharge the following responsibilities:
| a) | The owner or operator must take corrective action to ensure that regulated units are in compliance with the groundwater protection standard pursuant to Section 724.192. The Agency must specify the groundwater protection standard in the facility permit, including the following: |
| 1) | A list of the hazardous constituents identified pursuant to Section 724.193; |
| 2) | Concentration limits pursuant to Section 724.194 for each of those hazardous constituents; |
| 3) | The compliance point pursuant to Section 724.195; and |
| 4) | The compliance period pursuant to Section 724.196. |
| b) | The owner or operator must implement a corrective action program that prevents hazardous constituents from exceeding their respective concentration limits at the compliance point by removing the hazardous waste constituents or treating them in place. The permit will specify the specific measures that must be taken. |
| c) | The owner or operator must begin corrective action within a reasonable time period after the groundwater protection standard is exceeded. The Agency must specify that time period in the facility permit. If a facility permit includes a corrective action program in addition to a compliance monitoring program, the permit will specify when the corrective action must begin and such a requirement will operate in lieu of Section 724.199(i)(2). |
| d) | In conjunction with a corrective action program, the owner or operator must establish and implement a groundwater monitoring program to demonstrate the effectiveness of the corrective action program. Such a monitoring program may be based on the requirements for a compliance monitoring program pursuant to Section 724.199 and must be as effective as that program in determining compliance with the groundwater protection standard pursuant to Section 724.192 and in determining the success of a corrective action program pursuant to subsection (e) of this Section where appropriate. |
| e) | In addition to the other requirements of this Section, the owner or operator must conduct a corrective action program to remove or treat in place any hazardous constituents pursuant to Section 724.193 that exceed concentration limits pursuant to Section 724.194 in groundwater, as follows: |
| 1) | At the following locations: |
| A) | Between the compliance point pursuant to Section 724.195 and the downgradient facility property boundary; and |
| B) | Beyond the facility boundary, where necessary to adequately protect human health and the environment, unless the owner or operator demonstrates to the Agency that, despite the owner’s or operator’s best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner and operator are not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. |
| 2) | The permit will specify the following measures to be taken: |
| A) | Corrective action measures pursuant to this subsection (e) must be initiated and completed within a reasonable period of time considering the extent of contamination. |
| B) | Corrective action measures pursuant to this subsection (e) may be terminated once the concentration of hazardous constituents pursuant to Section 724.193 is reduced to levels below their respective concentration limits pursuant to Section 724.194. |
| f) | The owner or operator must continue corrective action measures during the compliance period to the extent necessary to ensure that the groundwater protection standard is not exceeded. If the owner or operator is conducting corrective action at the end of the compliance period, the owner or operator must continue that corrective action for as long as necessary to achieve compliance with the groundwater protection standard. The owner or operator may terminate corrective action measures taken beyond the period equal to the active life of the waste management area (including the closure period) if the owner or operator can demonstrate, based on data from the groundwater monitoring program pursuant to subsection (d) of this Section, that the groundwater protection standard of Section 724.192 has not been exceeded for a period of three consecutive years. |
| g) | The owner or operator must report in writing to the Agency on the effectiveness of the corrective action program. The owner or operator must submit these reports |
| h) | If the owner or operator determines that the corrective action program no longer satisfies this Section, the owner or operator must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
SUBPART G: CLOSURE AND POST-CLOSURE CARE
| Section 724.213 | Closure; Time Allowed for Closure |
| a) | All permits must require that, within 90 days after receiving the final volume of hazardous waste, or the final volume of non-hazardous wastes, if the owner or operator complies with all the applicable requirements of subsections (d) and (e) of this Section, at a hazardous waste management unit or facility, the owner or operator treat, remove from the unit or facility, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan, unless the owner or operator makes the following demonstration by way of permit application or modification application. The Agency must approve a longer period if the owner or operator demonstrates that the following is true: |
| 1) | Either of the following: |
| A) | The activities required to comply with this subsection (a) will, of necessity, take longer than 90 days to complete; or |
| B) | All of the following is true: |
| i) | The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or has the capacity to receive non-hazardous wastes, if the owner or operator complies with subsections (d) and (e) of this Section; |
| ii) | There is a reasonable likelihood that the owner or operator or another person will recommence operation of the hazardous waste management unit or facility within one year; and |
| iii) | Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and |
| 2) | The owner or operator has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements. |
| b) | All permits must require that the owner or operator complete partial and final closure activities in accordance with the approved closure plan and within 180 days after receiving the final volume of hazardous wastes, or the final volume of non-hazardous wastes, if the owner or operator complies with all applicable requirements in subsections (d) and (e) of this Section, at the hazardous waste management unit or facility, unless the owner or operator makes the following demonstration by way of permit application or modification application. The Agency must approve a longer closure period if the owner or operator demonstrates as follows: |
| 1) | Either of the following: |
| A) | The partial or final closure activities will, of necessity, take longer than 180 days to complete; or |
| B) | All of the following: |
| i) | The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes, or has the capacity to receive non-hazardous wastes, if the owner or operator complies with subsections (d) and (e) of this Section; |
| ii) | There is reasonable likelihood that the owner or operator will recommence operation of the hazardous waste management unit or facility within one year; and |
| iii) | Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and |
| 2) | The owner and operator have taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility including compliance with all applicable permit requirements. |
| c) | The demonstration referred to in subsections (a)(1) and (b)(1) of this Section must be made as follows: |
| 1) | The demonstration in subsection (a)(1) of this Section must be made at least 30 days prior to the expiration of the 90-day period in subsection (a) of this Section; and |
| 2) | The demonstration in subsection (b)(1) of this Section must be made at least 30 days prior to the expiration of the 180-day period in subsection (b) of this Section, unless the owner or operator is otherwise subject to deadlines in subsection (d) of this Section. |
| d) | Continued receipt of non-hazardous waste. The Agency must permit an owner or operator to receive only non-hazardous wastes in a landfill, land treatment unit, or surface impoundment unit after the final receipt of hazardous wastes at that unit if the following is true: |
| 1) | The owner or operator requests a permit modification in compliance with all applicable requirements in 35 Ill. Adm. Code 702, 703, and 705, and in the permit modification request demonstrates the following: |
| A) | That the unit has the existing design capacity as indicated on the Part A application to receive non-hazardous wastes; |
| B) | That there is a reasonable likelihood that the owner or operator or another person will receive non-hazardous wastes in the unit within one year after the final receipt of hazardous wastes; |
| C) | That the non-hazardous wastes will not be incompatible with any remaining wastes in the unit, or with the facility design and operating requirements of the unit or facility pursuant to this Part; |
| D) | That closure of the hazardous waste management unit would be incompatible with continued operation of the unit or facility; and |
| E) | That the owner or operator is operating and will continue to operate in compliance with all applicable permit requirements; |
| 2) | The request to modify the permit includes an amended waste analysis plan, groundwater monitoring and response program, human exposure assessment required pursuant to 35 Ill. Adm. Code 703.186, and closure and post-closure plans and updated cost estimates and demonstrations of financial assurance for closure and post-closure care, as necessary and appropriate, to reflect any changes due to the presence of hazardous constituents in the non-hazardous wastes, and changes in closure activities, including the expected year of closure if applicable pursuant to Section 724.212(b)(7), as a result of the receipt of non-hazardous wastes following the final receipt of hazardous wastes; |
| 3) | The request to modify the permit includes revisions, as necessary and appropriate, to affected conditions of the permit to account for the receipt of non-hazardous wastes following receipt of the final volume of hazardous wastes; and |
| 4) | The request to modify the permit and the demonstrations referred to in subsections (d)(1) and (d)(2) of this Section are submitted to the Agency no later than 120 days prior to the date on which the owner or operator of the facility receives the known final volume of hazardous wastes at the unit or no later than 90 days after the effective date of this Section, whichever is later. |
| e) | Surface impoundments. In addition to the requirements in subsection (d) of this Section, an owner or operator of a hazardous waste surface impoundment that is not in compliance with the liner and leachate collection system requirements in Section 724.321(c), (d), or (e) must receive non-hazardous wastes only as authorized by an adjusted standard pursuant to this subsection (e). |
| 1) | The petition for adjusted standard must include the following: |
| A) | A plan for removing hazardous wastes; and |
| B) | A contingent corrective measures plan. |
| 2) | The removal plan must provide for the following: |
| A) | Removing all hazardous liquids; and |
| B) | Removing all hazardous sludges to the extent practicable without impairing the integrity of the liner or liners, if any; and |
| C) | Removal of hazardous wastes no later than 90 days after the final receipt of hazardous wastes. The Board will allow a longer time, if the owner or operator demonstrates the following: |
| i) | That the removal of hazardous wastes will, of necessity, take longer than the allotted period to complete; and |
| ii) | That an extension will not pose a threat to human health and the environment. |
| 3) | The following requirements apply to the contingent corrective measures plan: |
| A) | It must meet the requirements of a corrective action plan pursuant to Section 724.199, based upon the assumption that a release has been detected from the unit. |
| B) | It may be a portion of a corrective action plan previously submitted pursuant to Section 724.199. |
| C) | It may provide for continued receipt of non-hazardous wastes at the unit following a release only if the owner or operator demonstrates that continued receipt of wastes will not impede corrective action. |
| D) | It must provide for implementation within one year after a release, or within one year after the grant of the adjusted standard, whichever is later. |
| 4) | Definition of “release.” A release is defined as a statistically significant increase (or decrease in the case of pH) over background values for detection monitoring parameters or constituents specified in the permit, or over the facility’s groundwater protection standard at the or over the facility’s groundwater protection standard at the point of compliance, if applicable, detected in accordance with the requirements in Subpart F of this Part. |
| 5) | In the event of a release, the owner or operator of the unit must do the following: |
| A) | Within 35 days, the owner or operator must file with the Board a petition for adjusted standard. If the Board finds that it is necessary to do so in order to adequately protect human health and the environment, the Board will modify the adjusted standard to require the owner or operator to fulfill the conditions of subsections (e)(5)(A)(i) and (e)(5)(A)(ii) of this Section. The Board will retain jurisdiction or condition the adjusted standard so as to require the filing of a new petition to address any required closure pursuant to subsection (e)(7) of this Section. |
| i) | Begin to implement that corrective measures plan in less than one year; or |
| ii) | Cease the receipt of wastes until the plan has been implemented. |
| B) | The owner or operator must implement the contingent corrective measures plan. |
| C) | The owner or operator may continue to receive wastes at the unit if authorized by the approved contingent measures plan. |
| 6) | |
| A) | |
| B) | |
| C) | |
| 7) | Required closure. The owner or operator must commence closure of the unit in accordance with the closure plan and the requirements of this Part if the Board terminates the adjusted standard, or if the adjusted standard terminates pursuant to its terms. |
| A) | The Board will terminate the adjusted standard if the owner or operator failed to implement corrective action measures in accordance with the approved contingent corrective measures plan. |
| B) | The Board will terminate the adjusted standard if the owner or operator fails to make substantial progress in implementing the corrective measures plan and achieving the facility’s groundwater protection standard, or background levels if the facility has not yet established a groundwater protection standard. |
| C) | The adjusted standard will automatically terminate if the owner or operator fails to implement the removal plan. |
| D) | The adjusted standard will automatically terminate if the owner or operator fails to timely file a required petition for adjusted standard. |
| 8) | Adjusted standard procedures. The following procedures must be used in granting, modifying or terminating an adjusted standard pursuant to this subsection (e). |
| A) | Except as otherwise provided, the owner or operator must follow the procedures of Section 28.1 of the Act [415 ILCS 5/28.1] and 35 Ill. Adm. Code 101 and 104 to petition the Board for an adjusted standard. |
| B) | Initial justification. The Board will grant an adjusted standard pursuant to subsection (e)(1) of this Section if the owner or operator demonstrates that the removal plan and contingent corrective measures plans meet the requirements of subsections (e)(2) and (e)(3) of this Section. |
| C) | The Board will include the following conditions in granting an adjusted standard pursuant to subsection (e)(1) of this Section: |
| i) | A plan for removing hazardous wastes. |
| ii) | A requirement that the owner or operator remove hazardous wastes in accordance with the plan. |
| iii) | A contingent corrective measures plan. |
| iv) | A requirement that, in the event of a release, the owner or operator must do as follows: within 35 days, file with the Board a petition for adjusted standard; implement the corrective measures plan; and, file semi-annual reports with the Agency. |
| v) | A condition that the adjusted standard will terminate if the owner or operator fails to do as follows: implement the removal plan; or timely file a required petition for adjusted standard. |
| vi) | A requirement that, in the event the adjusted standard is terminated, the owner or operator must commence closure of the unit in accordance with the requirements of the closure plan and this Part. |
| D) | Justification in the event of a release. The Board will modify or terminate the adjusted standard pursuant to a petition filed pursuant to subsection (e)(5)(A) of this Section, as provided in that subsection or in subsection (e)(7) of this Section. |
| 9) | The Agency must modify the RCRA permit to include the adjusted standard. |
| 10) | The owner or operator may file a permit modification application with a revised closure plan within 15 days after an adjusted standard is terminated. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.215 | Certification of Closure |
| Within 60 days after completion of closure of each hazardous waste surface impoundment, waste pile, land treatment, or landfill unit, and within 60 days after completion of final closure, the owner or operator must submit to the Agency, by registered mail, a certification that the hazardous waste management unit or facility, as applicable, has been closed in accordance with the specifications in the approved closure plan. The certification must be signed by the owner or operator and by | |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.216 | Survey Plat |
| No later than the submission of the certification of closure of each hazardous waste disposal unit, the owner or operator must submit to any local zoning authority or authority with jurisdiction over local land use and to the Agency and record with land titles, a survey plat indicating the location and dimensions of | |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.220 | Certification of Completion of Post-Closure Care |
| No later than 60 days after completion of the established post-closure care period for each hazardous waste disposal unit, the owner or operator must submit to the Agency, by registered mail, a certification that the post-closure care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved post-closure plan. The certification must be signed by the owner or operator and | |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
SUBPART H: FINANCIAL REQUIREMENTS
| Section 724.240 | Applicability |
| a) | The requirements of Sections 724.242, 724.243, and 724.247 through 724.251 apply to owners and operators of all hazardous waste facilities, except as provided otherwise in this Section or in Section 724.101. |
| b) | The requirements of Sections 724.244 and 724.245 apply only to owners and operators of the following: |
| 1) | Disposal facilities; |
| 2) | Piles, and surface impoundments from which the owner or operator intends to remove the wastes at closure, to the extent that Sections 724.244 and 724.245 are made applicable to such facilities in Sections 724.328 and 724.358; |
| 3) | Tank systems that are required pursuant to Section 724.297 to meet the requirements for landfills; or |
| 4) | Containment buildings that are required pursuant to Section 724.1102 to meet the requirements for landfills. |
| c) | The State and the federal government are exempt from the requirements of this Subpart H. |
| d) | A permit or enforceable document can contain alternative requirements that replace all or part of the financial assurance requirements of this Subpart H applying to a regulated unit, as provided in 35 Ill. Adm. Code 703.161, where the Board or Agency has done the following: |
| 1) | The Board or Agency has established alternative requirements for the regulated unit established pursuant to Section 724.190(f) or |
| 2) | The Board or Agency determines that it is not necessary to apply the financial assurance requirements of this Subpart H because the alternative financial assurance requirements will adequately protect human health and the environment. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.243 | Financial Assurance for Closure |
| An owner or operator of each facility must establish financial assurance for closure of the facility. The owner or operator must choose from the options that are specified in subsections (a) through (f) of this Section. | |
| a) | Closure trust fund. |
| 1) | An owner or operator may satisfy the requirements of this Section by establishing a closure trust fund that conforms to the requirements of this subsection (a) and submitting an original signed duplicate of the trust agreement to the Agency. An owner or operator of a new facility must submit the original signed duplicate of the trust agreement to the Agency at least 60 days before the date on which hazardous waste is first received for treatment, storage or disposal. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or State agency. |
| 2) | The wording of the trust agreement must be that specified in Section 724.251 and the trust agreement must be accompanied by a formal certification of acknowledgment (as specified in Section 724.251). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement. |
| 3) | Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the “pay-in period.” The payments into the closure trust fund must be made as follows: |
| A) | 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 Agency before this initial receipt of hazardous waste. The first payment must be at least equal to the current closure cost estimate, except as provided in subsection (g) of this Section, divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by the following formula: |
Where:
| CE = | the current closure cost estimate |
| CV = | the current value of the trust fund |
| Y = | the number of years remaining in the pay-in period |
| B) | If an owner or operator establishes a trust fund as specified in 35 Ill. Adm. Code 725.243(a) and the value of that trust fund is less than the current closure cost estimate when a permit is awarded for the facility, the amount of the current closure cost estimate still to be paid into the trust fund must be paid in over the pay-in period as defined in subsection (a)(3) of this Section. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to 35 Ill. Adm. Code 725. The amount of each payment must be determined by the following formula: |
Where:
| CE = | the current closure cost estimate |
| CV = | the current value of the trust fund |
| Y = | the number of years remaining in the pay-in period |
| 4) | The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current closure cost estimate at the time the fund is established. 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 subsection (a)(3) of this Section. |
| 5) | If the owner or operator establishes a closure trust fund after having used one or more alternate mechanisms specified in this Section or in 35 Ill. Adm. Code 725.243, its first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this subsection (a) and 35 Ill. Adm. Code 725.243, as applicable. |
| 6) | After the pay-in period is completed, whenever the current closure cost estimate changes, the owner or operator must 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 60 days after the change in the cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current closure cost estimate or obtain other financial assurance as specified in this Section to cover the difference. |
| 7) | If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the Agency for release of the amount in excess of the current closure cost estimate. |
| 8) | If an owner or operator substitutes other financial assurance, as specified in this Section for all or part of the trust fund, it may submit a written request to the Agency for release of the amount in excess of the current closure cost estimate covered by the trust fund. |
| 9) | Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection (a)(7) or (a)(8) of this Section, the Agency must instruct the trustee to release to the owner or operator such funds as the Agency specifies in writing. |
| 10) | After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursement for closure expenditures by submitting itemized bills to the Agency. The owner or operator may request reimbursement for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for partial or final closure activities, the Agency must instruct the trustee to make reimbursement in those amounts as the Agency specifies in writing if the Agency determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the Agency determines that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, it must withhold reimbursement of such amounts as it deems prudent until it determines, in accordance with subsection (i) of this Section, that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the Agency does not instruct the trustee to make such reimbursements, the Agency must provide the owner or operator with a detailed written statement of reasons. |
| 11) | The Agency must agree to termination of the trust when either of the following occurs: |
| A) | An owner or operator substitutes alternate financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i). |
| b) | Surety bond guaranteeing payment into a closure trust fund. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining a surety bond that conforms to the requirements of this subsection (b) and submitting the bond to the Agency. An owner or operator of a new facility must submit the bond to the Agency at least 60 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 U.S. Department of the Treasury. |
| BOARD NOTE: The U.S. Department of the Treasury updates Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” on an annual basis pursuant to 31 CFR 223.16. Circular 570 is available on the Internet from the following website: http://www.fms.treas.gov/c570/ . | |
| 2) | The wording of the surety bond must be that specified in Section 724.251. |
| 3) | The owner or operator who uses a surety bond to satisfy the requirements of this Section must 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 Agency. This standby trust fund must meet the requirements specified in subsection (a) of this Section except as follows: |
| A) | An original, signed duplicate of the trust agreement must be submitted to the Agency with the surety bond; and |
| B) | Until the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations: |
| i) | Payments into the trust fund as specified in subsection (a) of this Section; |
| ii) | Updating of Schedule A of the trust agreement (see 35 Ill. Adm. Code 724.251) to show current closure cost estimates; |
| iii) | Annual valuations, as required by the trust agreement; and |
| iv) | Notices of nonpayment as required by the trust agreement. |
| 4) | The bond must guarantee that the owner or operator will do one of the following: |
| A) | 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; |
| B) | Fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin final closure is issued by the Board or a U.S. district court or other court of competent jurisdiction; or |
| C) | Provide alternate financial assurance as specified in this Section, and obtain the Agency’s written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the bond from the surety. |
| 5) | 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. |
| 6) | The penal sum of the bond must be in an amount at least equal to the current closure cost estimate, except as provided in subsection (g) of this Section. |
| 7) | Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Agency or obtain other financial assurance, as specified in this Section, to cover the increase. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the Agency. |
| 8) | 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 Agency. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Agency, as |
| 9) | The owner or operator may cancel the bond if the Agency has given prior written consent based on its receipt of evidence of alternate financial assurance as specified in this Section. |
| c) | Surety bond guaranteeing performance of closure. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining a surety bond that conforms to the requirements of this subsection (c) and submitting the bond to the Agency. An owner or operator of a new facility must submit the bond to the Agency at least 60 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 U.S. Department of the Treasury. |
| BOARD NOTE: The U.S. Department of the Treasury updates Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” on an annual basis pursuant to 31 CFR 223.16. Circular 570 is available on the Internet from the following website: http://www.fms.treas.gov/c570/ . | |
| 2) | The wording of the surety bond must be that specified in Section 724.251. |
| 3) | The owner or operator who uses a surety bond to satisfy the requirements of this Section must 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 Agency. This standby trust must meet the requirements specified in subsection (a) of this Section, except as follows: |
| A) | An original, signed duplicate of the trust agreement must be submitted to the Agency with the surety bond; and |
| B) | Unless the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations: |
| i) | Payments into the trust fund, as specified in subsection (a) of this Section; |
| ii) | Updating of Schedule A of the trust agreement (as specified in Section 724.251) to show current closure cost estimates; |
| iii) | Annual valuations, as required by the trust agreement; and |
| iv) | Notices of nonpayment, as required by the trust agreement. |
| 4) | The bond must guarantee that the owner or operator will do the following: |
| A) | Perform final closure in accordance with the closure plan and other requirements of the permit for the facility whenever required to do so; or |
| B) | Provide alternative financial assurance, as specified in this Section, and obtain the Agency’s written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the bond from the surety. |
| 5) | 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 final judicial determination or Board order finding that the owner or operator has failed to perform final closure in accordance with the approved closure plan and other permit requirements when required to do so, under the terms of the bond the surety will perform final closure, as guaranteed by the bond, or will deposit the amount of the penal sum into the standby trust fund. |
| 6) | The penal sum of the bond must be in an amount at least equal to the current closure cost estimate. |
| 7) | Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Agency or obtain other financial assurance as specified in this Section. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the Agency. |
| 8) | 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 Agency. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Agency, as evidenced by the return receipts. |
| 9) | The owner or operator may cancel the bond if the Agency has given prior written consent. The Agency must provide such written consent when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| 10) | The surety must 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 Section in accordance with subsection (i) of this Section. |
| d) | Closure letter of credit. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subsection (d) and submitting the letter to the Agency. An owner or operator of a new facility must submit the letter of credit to the Agency at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency. |
| 2) | The wording of the letter of credit must be that specified in Section 724.251. |
| 3) | An owner or operator who uses a letter of credit to satisfy the requirements of this Section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Agency must be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Agency. This standby trust fund must meet the requirements of the trust fund specified in subsection (a) of this Section, except as follows: |
| A) | An original, signed duplicate of the trust agreement must be submitted to the Agency with the letter of credit; and |
| B) | Unless the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations. |
| i) | Payments into the trust fund, as specified in subsection (a) of this Section; |
| ii) | Updating of Schedule A of the trust agreement (as specified in Section 724.251) to show current closure cost estimates; |
| iii) | Annual valuations, as required by the trust agreement; and |
| iv) | Notices of nonpayment, as required by the trust agreement. |
| 4) | The letter or 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 USEPA identification number, name and address of the facility, and the amount of funds assured for closure of the facility by the letter of credit. |
| 5) | 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 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the Agency by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the Agency have received the notice, as evidenced by the return receipts. |
| 6) | The letter of credit must be issued in an amount at least equal to the current closure cost estimate, except as provided in subsection (g) of this Section. |
| 7) | Whenever the current closure cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current closure cost estimate and submit evidence of such increase to the Agency, or obtain other financial assurance, as specified in this Section, to cover the increase. Whenever the current closure cost estimate decreases, the amount of the credit may be reduced to the amount of the current closure cost estimate following written approval by the Agency. |
| 8) | Following a final judicial determination or Board order finding that the owner or operator has failed to perform final closure in accordance with the closure plan and other permit requirements when required to do so, the Agency may draw on the letter of credit. |
| 9) | If the owner or operator does not establish alternative financial assurance, as specified in this Section, and obtain written approval of such alternative assurance from the Agency within 90 days after receipt by both the owner or operator and the Agency of a notice from issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Agency must draw on the letter of credit. The Agency may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the Agency must draw on the letter of credit if the owner or operator has failed to provide alternative financial assurance, as specified in this Section, and obtain written approval of such assurance from the Agency. |
| 10) | The Agency must return the letter of credit to the issuing institution for termination when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| e) | Closure insurance. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining closure insurance that conforms to the requirements of this subsection (e) and submitting a certificate of such insurance to the Agency. An owner or operator of a new facility must submit the certificate of insurance to the Agency at least 60 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 or be eligible to provide insurance as an excess or surplus lines insurer in one or more States. |
| 2) | The wording of the certificate of insurance must be that specified in Section 724.251. |
| 3) | The closure insurance policy must be issued for a face amount at least equal to the current closure cost estimate, except as provided in subsection (g) of this Section. 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. |
| 4) | The closure insurance policy must guarantee that funds will be available to close the facility whenever final closure occurs. The policy must also guarantee that, once final closure 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 Agency to such party or parties, as the Agency specifies. |
| 5) | After beginning partial or final closure, an owner or operator or any other person authorized to conduct closure may request reimbursement for closure expenditures by submitting itemized bills to the Agency. The owner or operator may request reimbursements for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the Agency must instruct the insurer to make reimbursement in such amounts, as the Agency specifies in writing, if the Agency determines that the partial or final closure expenditures are in accordance with the approved closure plan or otherwise justified. If the Agency determines that the maximum cost of closure over the remaining life of the facility will be significantly greater than the face amount of the policy, it must withhold reimbursement of such amounts that it deems prudent, until it determines, in accordance with subsection (i) of this Section, that the owner or operator is no longer required to maintain financial assurance for closure of the facility. If the Agency does not instruct the insurer to make such reimbursements, the Agency must provide the owner or operator with a detailed written statement of reasons. |
| 6) | The owner or operator must maintain the policy in full force and effect until the Agency consents to termination of the policy by the owner or operator, as specified in subsection (e)(10) of this Section. Failure to pay the premium, without substitution of alternative financial assurance, as specified in this Section, will constitute a significant violation of these regulations, warranting such remedy as the Board may impose pursuant to the Environmental Protection Act. Such violation will be deemed to begin upon receipt by the Agency of a notice of future cancellation, termination or failure to renew due to nonpayment of the premium, rather than upon the date of expiration. |
| 7) | 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. |
| 8) | 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 Agency. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the Agency 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 one of the following occurs: |
| A) | The Agency deems the facility abandoned; |
| B) | The permit is terminated or revoked or a new permit is denied; |
| C) | Closure is ordered by the Board or a U.S. district court or other court of competent jurisdiction; |
| D) | The owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USC (Bankruptcy); or |
| E) | The premium due is paid. |
| 9) | Whenever the current closure cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Agency, or obtain other financial assurance, as specified in this Section to cover the increase. Whenever the current closure cost estimate decreases, the face amount may be reduced to the amount of the current closure cost estimate following written approval by the Agency. |
| 10) | The Agency must give written consent to the owner or operator that it may terminate the insurance policy when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| f) | Financial test and corporate guarantee for closure. |
| 1) | An owner or operator may satisfy the requirements of this Section by demonstrating that it passes a financial test, as specified in this subsection (f). To pass this test the owner or operator must meet the criteria of either subsection (f)(1)(A) or (f)(1)(B) of this Section: |
| A) | The owner or operator must have the following: |
| i) | Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; |
| ii) | Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates; and the current plugging and abandonment cost estimates; |
| iii) | Tangible net worth of at least $10 million; and |
| iv) | Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates. |
| B) | The owner or operator must have the following: |
| i) | A current rating for its 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; |
| ii) | Tangible net worth at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; |
| iii) | Tangible net worth of at least $10 million; and |
| iv) | Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure estimates and the current plugging and abandonment cost estimates. |
| 2) | The phrase “current closure and post-closure cost estimates,” as used in subsection (f)(1) of this Section, refers to the cost estimates required to be shown in subsections 1-4 of the letter from the owner’s or operator’s chief financial officer (see Section 724.251). The phrase “current plugging and abandonment cost estimates,” as used in subsection (f)(1) of this Section, refers to the cost estimates required to be shown in subsections 1-4 of the letter from the owner’s or operator’s chief financial officer (see 35 Ill. Adm. Code 704.240). |
| 3) | To demonstrate that it meets this test, the owner or operator must submit the following items to the Agency: |
| A) | A letter signed by the owner’s or operator’s chief financial officer and worded as specified in Section 724.251; and |
| B) | 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 |
| C) | A special report from the owner’s or operator’s independent certified public accountant to the owner or operator stating the following: |
| i) | That the accountant has compared the data that 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 |
| ii) | In connection with that procedure, that no matters came to the accountant’s attention which caused the accountant to believe that the specified data should be adjusted. |
| 4) | An owner or operator of a new facility must submit the items specified in subsection (f)(3) of this Section to the Agency at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. |
| 5) | After the initial submission of items specified in subsection (f)(3) of this Section, the owner or operator must send updated information to the Agency within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subsection (f)(3) of this Section. |
| 6) | If the owner or operator no longer meets the requirements of subsection (f)(1) of this Section the owner or operator must send notice to the Agency of intent to establish alternative financial assurance, as specified in this Section. The notice must be sent by certified mail within 90 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 alternative financial assurance within 120 days after the end of such fiscal year. |
| 7) | The Agency may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (f)(1) of this Section, require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (f)(3) of this Section. If the Agency finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (f)(1) of this Section, the owner or operator must provide alternative financial assurance, as specified in this Section, within 30 days after notification of such a finding. |
| 8) | The Agency may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the accountant’s report on examination of the owner’s or operator’s financial statements (see subsection (f)(3)(B) of this Section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Agency must evaluate other qualifications on an individual basis. The owner or operator must provide alternative financial assurance, as specified in this Section, within 30 days after notification of the disallowance. |
| 9) | The owner or operator is no longer required to submit the items specified in subsection (f)(3) of this Section when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| 10) | An owner or operator may meet the requirements of this Section by obtaining a written guarantee, hereafter referred to as “corporate 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 subsections (f)(1) through (f)(8) of this Section, must comply with the terms of the corporate guarantee, and the wording of the corporate guarantee must be that specified in Section 724.251. The certified copy of the corporate guarantee must accompany the items sent to the Agency, as specified in subsection (f)(3) of this Section. 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 corporate guarantee must provide as follows: |
| A) | If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund, as specified in subsection (a) of this Section, in the name of the owner or operator. |
| B) | 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 Agency. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Agency, as evidenced by the return receipts. |
| C) | If the owner or operator fails to provide alternative financial assurance as specified in this Section and obtain the written approval of such alternative assurance from the Agency within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator. |
| g) | 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 subsections (a), (b), (d), and (e) of this Section, respectively, except that it is the combination of mechanisms, rather than the single mechanism, that must provide financial assurance for an amount at least equal to the current closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, it 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 Agency may use any or all of the mechanisms to provide for closure of the facility. |
| h) | 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 Agency must include a list showing, for each facility, the USEPA identification number, name, address, and the amount of funds for closure 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. The amount of funds available to the Agency must be sufficient to close all of the owner or operator’s facilities. In directing funds available through the mechanism for closure of any of the facilities covered by the mechanism, the Agency 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. |
| i) | Release of the owner or operator from the requirements of this Section. Within 60 days after receiving certifications from the owner or operator and |
| j) | Appeal. The following Agency actions are deemed to be permit modifications or refusals to modify for purposes of appeal to the Board (35 Ill. Adm. Code 702.184(e)(3)): |
| 1) | An increase in, or a refusal to decrease the amount of, a bond, letter of credit, or insurance; |
| 2) | Requiring alternative assurance upon a finding that an owner or operator or parent corporation no longer meets a financial test. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.245 | Financial Assurance for Post-Closure Care |
An owner or operator of a hazardous waste management unit subject to the requirements of Section 724.244 must establish financial assurance for post-closure care in accordance with the approved post-closure plan for the facility 60 days prior to the initial receipt of hazardous waste or the effective date of the regulation, whichever is later. The owner or operator must choose from among the following options:
| a) | Post-closure trust fund. |
| 1) | An owner or operator may satisfy the requirements of this Section by establishing a post-closure trust fund that conforms to the requirements of this subsection (a) and submitting an original, signed duplicate of the trust agreement to the Agency. An owner or operator of a new facility must submit the original, signed duplicate of the trust agreement to the Agency at least 60 days before the date on which hazardous waste is first received for disposal. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or State agency. |
| 2) | The wording of the trust agreement must be that specified in Section 724.251 and the trust agreement accompanied by a formal certification of acknowledgment (as specified in Section 724.251). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current post-closure cost estimate covered by the agreement. |
| 3) | Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the “pay-in period.” The payments into the post-closure trust fund must be made as follows: |
| A) | For a new facility, the first payment must be made before the initial receipt of hazardous waste for disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Agency before this initial receipt of hazardous waste. The first payment must be at least equal to the current post-closure cost estimate, except as provided in subsection (g) of this Section, divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by the following formula: |
Where:
CE = the current closure cost estimate
CV = the current value of the trust fund
| Y = | the number of years remaining in the pay-in period |
| B) | If an owner or operator establishes a trust fund, as specified in 35 Ill. Adm. Code 725.245(a), and the value of that trust fund is less than the current post-closure cost estimate when a permit is awarded for the facility, the amount of the current post-closure cost estimate still to be paid into the trust fund must be paid in over the pay-in period as defined in subsection (a)(3) of this Section. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to 35 Ill. Adm. Code 725. The amount of each payment must be determined by the following formula: |
Where:
CE = the current closure cost estimate
CV = the current value of the trust fund
| Y = | the number of years remaining in the pay-in period |
| 4) | The owner or operator may accelerate payments into the trust fund or 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 subsection (a)(3) of this Section. |
| 5) | If the owner or operator establishes a post-closure trust fund after having used one or more alternative mechanisms specified in this Section or in 35 Ill. Adm. Code 725.245, its first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this subsection (a) and 35 Ill. Adm. Code 725.245, as applicable. |
| 6) | After the pay-in period is completed, whenever the current post-closure cost estimate changes during the operating life of the facility, the owner or operator must 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 60 days after the change in the cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current post-closure cost estimate, or obtain other financial assurance, as specified in this Section, to cover the difference. |
| 7) | During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current post-closure cost estimate, the owner or operator may submit a written request to the Agency for release of the amount in excess of the current post-closure cost estimate. |
| 8) | If an owner or operator substitutes other financial assurance as specified in this Section for all or part of the trust fund, it may submit a written request to the Agency for release of the amount in excess of the current post-closure cost estimate covered by the trust fund. |
| 9) | Within 60 days after receiving a request from the owner or operator for release of funds, as specified in subsection (a)(7) or (a)(8) of this Section, the Agency must instruct the trustee to release to the owner or operator such funds as the Agency specifies in writing. |
| 10) | During the period of post-closure care, the Agency must approve a release of funds if the owner or operator demonstrates to the Agency that the value of the trust fund exceeds the remaining cost of post-closure care. |
| 11) | An owner or operator or any other person authorized to perform post-closure care may request reimbursement for post-closure care expenditures by submitting itemized bills to the Agency. Within 60 days after receiving bills for post-closure activities, the Agency must instruct the trustee to make requirements in those amounts that the Agency specifies in writing if the Agency determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified. If the Agency does not instruct the trustee to make such reimbursements, the Agency must provide the owner or operator with a detailed written statement of reasons. |
| 12) | The Agency must agree to termination of the trust when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| b) | Surety bond guaranteeing payment into a post-closure trust fund. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining a surety bond that conforms to the requirements of this subsection (b) and submitting the bond to the Agency. An owner or operator of a new facility must submit the bond to the Agency at least 60 days before the date on which hazardous waste is first received for 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 U.S. Department of the Treasury. |
BOARD NOTE: The U.S. Department of the Treasury updates Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” on an annual basis pursuant to 31 CFR 223.16. Circular 570 is available on the Internet from the following website: http://www.fms.treas.gov/c570/ .
| 2) | The wording of the surety bond must be that specified in Section 724.251. |
| 3) | The owner or operator who uses a surety bond to satisfy the requirements of this Section must 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 Agency. This standby trust fund must meet the requirements specified in subsection (a) of this Section, except as follows: |
| A) | An original, signed duplicate of the trust agreement must be submitted to the Agency with the surety bond; and |
| B) | Until the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations: |
| i) | Payments into the trust fund, as specified in subsection (a) of this Section; |
| ii) | Updating of Schedule A of the trust agreement (as specified in Section 724.251) to show current post-closure cost estimates; |
| iii) | Annual valuations, as required by the trust agreement; and |
| iv) | Notices of nonpayment, as required by the trust agreement. |
| 4) | The bond must guarantee that the owner or operator will do one of the following: |
| A) | 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; |
| B) | Fund the standby trust fund in an amount equal to the penal sum within 15 days after an order to begin closure is issued by the Board or a U.S. district court or other court of competent jurisdiction; or |
| C) | Provide alternative financial assurance as specified in this Section, and obtain the Agency’s written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the bond from the surety. |
| 5) | 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. |
| 6) | The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate, except as provided in subsection (g) of this Section. |
| 7) | Whenever the current post-closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Agency or obtain other financial assurance, as specified in this Section, to cover the increase. Whenever the current post-closure cost estimate decreases, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. |
| 8) | 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 Agency. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Agency, as evidence by the return receipts. |
| 9) | The owner or operator may cancel the bond if the Agency has given prior written consent based on its receipt of evidence of alternative financial assurance, as specified in this Section. |
| c) | Surety bond guaranteeing performance of post-closure care. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining a surety bond that conforms to the requirements of this subsection (c) and submitting the bond to the Agency. An owner or operator of a new facility must submit the bond to the Agency at least 60 days before the date on which hazardous waste is first received for 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 U.S. Department of the Treasury. |
BOARD NOTE: The U.S. Department of the Treasury updates Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies,” on an annual basis pursuant to 31 CFR 223.16. Circular 570 is available on the Internet from the following website: http://www.fms.treas.gov/c570/ .
| 2) | The wording of the surety bond must be that specified in Section 724.251. |
| 3) | The owner or operator who uses a surety bond to satisfy the requirements of this Section must 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 Agency. This standby trust must meet the requirements specified in subsection (a) of this Section, except as follows: |
| A) | An original, signed duplicate of the trust agreement must be submitted to the Agency with the surety bond; and |
| B) | Unless the standby trust fund is funded pursuant to the requirements of this Section, the following are not required: |
| i) | Payments into the trust fund, as specified in subsection (a) of this Section; |
| ii) | Updating of Schedule A of the trust agreement (as specified in Section 724.251) to show current post-closure cost estimates; |
| iii) | Annual valuations, as required by the trust agreement; and |
| iv) | Notices of nonpayment, as required by the trust agreement. |
| 4) | The bond must guarantee that the owner or operator will do either of the following: |
| A) | Perform final post-closure care in accordance with the post-closure plan and other requirements of the permit for the facility; or |
| B) | Provide alternative financial assurance, as specified in this Section, and obtain the Agency’s written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the bond from the surety. |
| 5) | 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 final judicial determination or Board order finding that the owner or operator has failed to perform post-closure care in accordance with the approved post-closure plan and other permit requirements, under the terms of the bond the surety will perform post-closure care in accordance with post-closure plan and other permit requirements or will deposit the amount of the penal sum into the standby trust fund. |
| 6) | The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate. |
| 7) | Whenever the current post-closure cost estimate increases to an amount greater than the penal sum during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Agency, or obtain other financial assurance, as specified in this Section. Whenever the current closure cost estimate decreases during the operating life of the facility, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. |
| 8) | During the period of post-closure care, the Agency must approve a decrease in the penal sum if the owner or operator demonstrates to the Agency that the amount exceeds the remaining cost of post-closure care. |
| 9) | 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 Agency. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Agency, as evidenced by the return receipts. |
| 10) | The owner or operator may cancel the bond if the Agency has given prior written consent. The Agency must provide such written consent when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| 11) | The surety will not be liable for deficiencies in the performance of post-closure care by the owner or operator after the Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| d) | Post-closure letter of credit. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subsection (d) and submitting the letter to the Agency. An owner or operator of a new facility must submit the letter of credit to the Agency at least 60 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 that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or State agency. |
| 2) | The wording of the letter of credit must be that specified in Section 724.251. |
| 3) | An owner or operator who uses a letter of credit to satisfy the requirements of this Section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Agency must be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Agency. This standby trust fund must meet the requirements of the trust fund specified in subsection (a) of this Section, except as follows: |
| A) | An original, signed duplicate of the trust agreement must be submitted to the Agency with the letter of credit; and |
| B) | Unless the standby trust fund is funded pursuant to the requirements of this Section, the following are not required by these regulations: |
| i) | Payments into the trust fund, as specified in subsection (a) of this Section; |
| ii) | Updating of Schedule A of the trust agreement (as specified in Section 724.251) to show current post-closure cost estimates; |
| iii) | Annual valuations, as required by the trust agreement; and |
| iv) | Notices of nonpayment, as required by the trust agreement. |
| 4) | The letter or 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 USEPA identification number, name and address of the facility, and the amount of funds assured for post-closure care of the facility by the letter of credit. |
| 5) | 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 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the Agency by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the Agency have received the notice, as evidenced by the return receipts. |
| 6) | The letter of credit must be issued in an amount at least equal to the current post-closure cost estimate, except as provided in subsection (g) of this Section. |
| 7) | Whenever the current post-closure cost estimate increases to an amount greater than the amount of the credit during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current post-closure cost estimate and submit evidence of such increase to the Agency, or obtain other financial assurance as specified in this Section to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the amount of the credit may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. |
| 8) | During the period of post-closure care, the Agency must approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the Agency that the amount exceeds the remaining cost of post-closure care. |
| 9) | Following a final judicial determination or Board order finding that the owner or operator has failed to perform post-closure care in accordance with the approved post-closure plan and other permit requirements, the Agency may draw on the letter of credit. |
| 10) | If the owner or operator does not establish alternative financial assurance, as specified in this Section, and obtain written approval of such alternative assurance from the Agency within 90 days after receipt by both the owner or operator and the Agency of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Agency must draw on the letter of credit. The Agency may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the Agency must draw on the letter of credit if the owner or operator has failed to provide alternative financial assurance, as specified in this Section, and obtain written approval of such assurance from the Agency. |
| 11) | The Agency must return the letter of credit to the issuing institution for termination when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| e) | Post-closure insurance. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining post-closure insurance that conforms to the requirements of this subsection (e) and submitting a certificate of such insurance to the Agency. An owner or operator of a new facility must submit the certificate of insurance to the Agency at least 60 days before the date on which hazardous waste is first received for 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 or be eligible to provide insurance as an excess or surplus lines insurer in one or more states. |
| 2) | The wording of the certificate of insurance must be that specified in Section 724.251. |
| 3) | The post-closure insurance policy must be issued for a face amount at least equal to the current post-closure cost estimate, except as provided in subsection (g) of this Section. 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. |
| 4) | The post-closure insurance policy must guarantee that funds will be available to provide post-closure care of facility whenever the post-closure period begins. The policy must also guarantee that, once post-closure care 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 Agency to such party or parties as the Agency specifies. |
| 5) | An owner or operator or any other person authorized to perform post-closure care may request reimbursement for post-closure care expenditures by submitting itemized bills to the Agency. Within 60 days after receiving bills for post-closure activities, the Agency must instruct the insurer to make reimbursement in such amounts as the Agency specifies in writing if the Agency determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified. If the Agency does not instruct the insurer to make such reimbursements, the Agency must provide the owner or operator with a detailed written statement of reasons. |
| 6) | The owner or operator must maintain the policy in full force and effect until the Agency consents to termination of the policy by the owner or operator as specified in subsection (e)(11) of this Section. Failure to pay the premium, without substitution of alternative financial assurance as specified in this Section, will constitute a significant violation of these regulations, warranting such remedy as the Board may impose pursuant to the Environmental Protection Act [415 ILCS 5]. Such violation will be deemed to begin upon receipt by the Agency of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration. |
| 7) | 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. |
| 8) | 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 Agency. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the Agency 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 one of the following occurs: |
| A) | The Agency deems the facility abandoned; |
| B) | The permit is terminated or revoked or a new permit is denied; |
| C) | Closure is ordered by the Board or a U.S. district court or other court of competent jurisdiction; |
| D) | The owner or operator is named as debtor in a voluntary or involuntary proceeding under 11 USC (Bankruptcy); or |
| E) | The premium due is paid. |
| 9) | Whenever the current post-closure cost estimate increases to an amount greater than the face amount of the policy during the life of the facility, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Agency or obtain other financial assurance, as specified in this Section, to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the face amount may be reduced to the amount of the current post-closure cost estimate following written approval by the Agency. |
| 10) | Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer must 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 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities. |
| 11) | The Agency must give written consent to the owner or operator that the owner or operator may terminate the insurance policy when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| f) | Financial test and corporate guarantee for post-closure care. |
| 1) | An owner or operator may satisfy the requirements of this Section by demonstrating that it passes a financial test as specified in this subsection (f). To pass this test the owner or operator must meet the criteria of either subsection (f)(1)(A) or (f)(1)(B) of this Section: |
| A) | The owner or operator must have the following: |
| i) | Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; |
| ii) | Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates; |
| iii) | Tangible net worth of at least $10 million; and |
| iv) | Assets in the United States amounting to at least 90 percent of its total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates. |
| B) | The owner or operator must have the following: |
| i) | A current rating for its 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; |
| ii) | Tangible net worth at least six times the sum of the current closure and post-closure cost estimates and current plugging and abandonment cost estimates; |
| iii) | Tangible net worth of at least $10 million; and |
| iv) | Assets located in the United States amounting to at least 90 percent of its total assets or at least six times the sum of the current closure and post-closure cost estimates and the current plugging and abandonment cost estimates. |
| 2) | The phrase “current closure and post-closure cost estimates,” as used in subsection (f)(1) of this Section, refers to the cost estimates required to be shown in subsections 1 through 4 of the letter from the owner’s or operator’s chief financial officer (see Section 724.251). The phrase “current plugging and abandonment cost estimates,” as used in subsection (f)(1) of this Section, refers to the cost estimates required to be shown in subsections 1 through 4 of the letter from the owner’s or operator’s chief financial officer (see 35 Ill. Adm. Code 704.240). |
| 3) | To demonstrate that it meets this test, the owner or operator must submit the following items to the Agency: |
| A) | A letter signed by the owner’s or operator’s chief financial officer and worded as specified in Section 724.251; |
| B) | 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 |
| C) | A special report from the owner’s or operator’s independent certified public accountant to the owner or operator stating the following: |
| i) | The accountant has compared the data that 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 |
| ii) | In connection with that procedure, no matters came to the accountant’s attention that caused the accountant to believe that the specified data should be adjusted. |
| 4) | An owner or operator of a new facility must submit the items specified in subsection (f)(3) of this Section to the Agency at least 60 days before the date on which hazardous waste is first received for disposal. |
| 5) | After the initial submission of items specified in subsection (f)(3) of this Section, the owner or operator must send updated information to the Agency within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subsection (f)(3) of this Section. |
| 6) | If the owner or operator no longer meets the requirements of subsection (f)(1) of this Section, the owner or operator must send notice to the Agency of intent to establish alternative financial assurance, as specified in this Section. The notice must be sent by certified mail within 90 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 alternative financial assurance within 120 days after the end of such fiscal year. |
| 7) | Based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (f)(1) of this Section, the Agency may require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (f)(3) of this Section. If the Agency finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (f)(1) of this Section, the owner or operator must provide alternative financial assurance, as specified in this Section, within 30 days after notification of such a finding. |
| 8) | The Agency may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the accountant’s report on examination of the owner’s or operator’s financial statements (see subsection (f)(3)(B) of this Section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Agency must evaluate other qualifications on an individual basis. The owner or operator must provide alternative financial assurance, as specified in this Section, within 30 days after notification of the disallowance. |
| 9) | During the period of post-closure care, the Agency must approve a decrease in the current post-closure cost estimate for which this test demonstrates financial assurance if the owner or operator demonstrates to the Agency that the amount of the cost estimate exceeds the remaining cost of post-closure care. |
| 10) | The owner or operator is no longer required to submit the items specified in subsection (f)(3) of this Section when either of the following occurs: |
| A) | An owner or operator substitutes alternative financial assurance, as specified in this Section; or |
| B) | The Agency releases the owner or operator from the requirements of this Section in accordance with subsection (i) of this Section. |
| 11) | An owner or operator may meet the requirements of this Section by obtaining a written guarantee, hereafter referred to as “corporate 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 subsections (f)(1) through (f)(9), and must comply with the terms of the corporate guarantee. The wording of the corporate guarantee must be that specified in Section 724.251. A certified copy of the corporate guarantee must accompany the items sent to the Agency, as specified in subsection (f)(3) of this Section. 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 corporate guarantee must provide as follows: |
| A) | That if the owner or operator fails to perform post-closure care of a facility covered by the corporate guarantee in accordance with the post-closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in subsection (a) of this Section in the name of the owner or operator. |
| B) | That 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 Agency. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Agency, as evidenced by the return receipts. |
| C) | That if the owner or operator fails to provide alternative financial assurance as specified in this Section and obtain the written approval of such alternative assurance from the Agency within 90 days after receipt by both the owner or operator and the Agency of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator. |
| g) | 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 subsections (a), (b), (d), and (e) of this Section, respectively, except that it is the combination of mechanisms, rather than the single mechanism, that must provide financial assurance for an amount at least equal to the current post-closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, it 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 Agency may use any or all of the mechanisms to provide for post-closure care of the facility. |
| h) | 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 Agency must include a list showing, for each facility, the USEPA identification number, name, address, and the amount of funds for post-closure 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. The amount of funds available to the Agency must be sufficient to close all of the owner or operator’s facilities. In directing funds available through the mechanism for post-closure care of any of the facilities covered by the mechanism, the Agency 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. |
| i) | Release of the owner or operator from the requirements of this Section. Within 60 days after receiving certifications from the owner or operator and |
| j) | Appeal. The following Agency actions are deemed to be permit modifications or refusals to modify for purposes of appeal to the Board (35 Ill. Adm. Code 702.184(e)(3)): |
| 1) | An increase in or a refusal to decrease the amount of a bond, letter of credit, or insurance; |
| 2) | Requiring alternative assurance upon a finding that an owner or operator or parent corporation no longer meets a financial test. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
| Section 724.247 | Liability Requirements |
| a) | Coverage for sudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage, or disposal facility, or a group of such facilities, must demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs. This liability coverage may be demonstrated as specified in subsections (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), or (a)(6) of this Section: |
| 1) | An owner or operator may demonstrate the required liability coverage by having liability insurance, as specified in this subsection (a). |
| A) | Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement and of the certificate of insurance must be that specified in Section 724.251. |
| B) | Each insurance policy must be issued by an insurer that is licensed by the Illinois Department of Insurance. |
| 2) | An owner or operator may meet the requirements of this Section by passing a financial test or using the guarantee for liability coverage, as specified in subsections (f) and (g) of this Section. |
| 3) | An owner or operator may meet the requirements of this Section by obtaining a letter of credit for liability coverage, as specified in subsection (h) of this Section. |
| 4) | An owner or operator may meet the requirements of this Section by obtaining a surety bond for liability coverage, as specified in subsection (i) of this Section. |
| 5) | An owner or operator may meet the requirements of this Section by obtaining a trust fund for liability coverage, as specified in subsection (j) of this Section. |
| 6) | An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated must total at least the minimum amounts required by this Section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances pursuant to this subsection (a), the owner or operator must specify at least one such assurance as “primary” coverage and must specify other such assurance as “excess” coverage. |
| 7) | An owner or operator must notify the Agency within 30 days whenever any of the following occurs: |
| A) | A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in subsections (a)(1) through (a)(6) of this Section; |
| B) | A Certification of Valid Claim for bodily injury or property damages caused by sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage pursuant to subsections (a)(1) through (a)(6) of this Section; or |
| C) | A final court order establishing a judgement for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage pursuant to subsections (a)(1) through (a)(6) of this Section. |
| b) | Coverage for nonsudden accidental occurrences. An owner or operator of a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit that is used to manage hazardous waste, or a group of such facilities, must demonstrate financial responsibility for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs. An owner or operator meeting the requirements of this Section may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate coverage levels for sudden and nonsudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate. This liability coverage may be demonstrated as specified in subsections (b)(1), (b)(2), (b)(3), (b)(4), (b)(5), or (b)(6) of this Section: |
| 1) | An owner or operator may demonstrate the required liability coverage by having liability insurance, as specified in this subsection (b). |
| A) | Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be that specified in Section 724.251. The wording of the certificate of insurance must be that specified in Section 724.251. The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Agency. If requested by the Agency, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Agency at least 60 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. |
| B) | Each insurance policy must be issued by an insurer that is licensed by the Illinois Department of Insurance. |
| 2) | An owner or operator may meet the requirements of this Section by passing a financial test or using the guarantee for liability coverage, as specified in subsections (f) and (g) of this Section. |
| 3) | An owner or operator may meet the requirements of this Section by obtaining a letter of credit for liability coverage, as specified in subsection (h) of this Section. |
| 4) | An owner or operator may meet the requirements of this Section by obtaining a surety bond for liability coverage, as specified in subsection (i) of this Section. |
| 5) | An owner or operator may meet the requirements of this Section by obtaining a trust fund for liability coverage, as specified in subsection (j) of this Section. |
| 6) | An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated must total at least the minimum amounts required by this Section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances pursuant to this subsection (b), the owner or operator must specify at least one such assurance as “primary” coverage and must specify other such assurance as “excess” coverage. |
| 7) | An owner or operator must notify the Agency within 30 days whenever any of the following occurs: |
| A) | A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in subsections (b)(1) through (b)(6) of this Section; |
| B) | A Certification of Valid Claim for bodily injury or property damages caused by sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage pursuant to subsections (b)(1) through (b)(6) of this Section; or |
| C) | A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage pursuant to subsections (b)(1) through (b)(6) of this Section. |
| c) | Request for adjusted level of required liability coverage. If an owner or operator demonstrates to the Agency that the levels of financial responsibility required by subsection (a) or (b) of this Section are not consistent with the degree and duration of risk associated with treatment, storage, or disposal at the facility or group of facilities, the owner or operator may obtain an adjusted level of required liability coverage from the Agency. The request for an adjusted level of required liability coverage must be submitted to the Agency as part of the application pursuant to 35 Ill. Adm. Code 703.182 for a facility that does not have a permit, or pursuant to the procedures for permit modification pursuant to 35 Ill. Adm. Code 705.128 for a facility that has a permit. If granted, the modification will take the form of an adjusted level of required liability coverage, such level to be based on the Agency assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. The Agency may require an owner or operator who requests an adjusted level of required liability coverage to provide such technical and engineering information as is necessary to determine a level of financial responsibility other than that required by subsection (a) or (b) of this Section. Any request for an adjusted level of required liability coverage for a permitted facility will be treated as a request for a permit modification pursuant to 35 Ill. Adm. Code 703.271(e)(3) and 705.128. |
| d) | Adjustments by the Agency. If the Agency determines that the levels of financial responsibility required by subsection (a) or (b) of this Section are not consistent with the degree and duration of risk associated with treatment, storage, or disposal at the facility or group of facilities, the Agency must adjust the level of financial responsibility required pursuant to subsection (a) or (b) of this Section as may be necessary to adequately protect human health and the environment. This adjusted level must be based on the Agency’s assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. In addition, if the Agency determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, landfill, or land treatment facility, the Agency may require that an owner or operator of the facility comply with subsection (b) of this Section. An owner or operator must furnish to the Agency, within a time specified by the Agency in the request, which must be not be less than 30 days, any information that the Agency requests to determine whether cause exists for such adjustments of level or type of coverage. Any adjustment of the level or type of coverage for a facility that has a permit will be treated as a permit modification pursuant to 35 Ill. Adm. Code 703.271(e)(3) and 705.128. |
| e) | Period of coverage. Within 60 days after receiving certifications from the owner or operator and |
| f) | Financial test for liability coverage. |
| 1) | An owner or operator may satisfy the requirements of this Section by demonstrating that it passes a financial test as specified in this subsection (f). To pass this test the owner or operator must meet the criteria of subsection (f)(1)(A) or (f)(1)(B) of this Section: |
| A) | The owner or operator must have the following: |
| i) | Net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test; |
| ii) | Tangible net worth of at least $10 million; and |
| iii) | Assets in the United States amounting to either of the following: at least 90 percent of the total assets; or at least six times the amount of liability coverage to be demonstrated by this test. |
| B) | The owner or operator must have the following: |
| i) | A current rating for its 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; |
| ii) | Tangible net worth of at least $10 million; |
| iii) | Tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and |
| iv) | Assets in the United States amounting to either of the following: at least 90 percent of the total assets; or at least six times the amount of liability coverage to be demonstrated by this test. |
| 2) | The phrase “amount of liability coverage,” as used in subsection (f)(1) of this Section, refers to the annual aggregate amounts for which coverage is required pursuant to subsections (a) and (b) of this Section. |
| 3) | To demonstrate that it meets this test, the owner or operator must submit the following three items to the Agency: |
| A) | A letter signed by the owner’s or operator’s chief financial officer and worded as specified in Section 724.251. If an owner or operator is using the financial test to demonstrate both assurance for closure or post-closure care, as specified by Sections 724.243(f) and 724.245(f) and 35 Ill. Adm. Code 725.243(e) and 725.245(e), and liability coverage, it must submit the letter specified in Section 724.251 to cover both forms of financial responsibility; a separate letter, as specified in Section 724.251, is not required. |
| B) | 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. |
| C) | A special report from the owner’s or operator’s independent certified public accountant to the owner or operator stating the following: |
| i) | The accountant has compared the data that 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 |
| ii) | In connection with that procedure, no matters came to the accountant’s attention that caused the accountant to believe that the specified data should be adjusted. |
| 4) | An owner or operator of a new facility must submit the items specified in subsection (f)(3) of this Section to the Agency at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. |
| 5) | After the initial submission of items specified in subsection (f)(3) of this Section, the owner of operator must send updated information to the Agency within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subsection (f)(3) of this Section. |
| 6) | If the owner or operator no longer meets the requirements of subsection (f)(1) of this Section, the owner or operator must obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of required liability coverage as specified in this Section. Evidence of insurance must be submitted to the Agency within 90 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 test requirements. |
| 7) | The Agency may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in the accountant’s report on examination of the owner’s or operator’s financial statements (see subsection (f)(3)(B) of this Section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Agency must evaluate other qualifications on an individual basis. The owner or operator must provide evidence of insurance for the entire amount of required liability coverage, as specified in this Section, within 30 days after notification of disallowance. |
| g) | Guarantee for liability coverage. |
| 1) | Subject to subsection (g)(2) of this Section, an owner or operator may meet the requirements of this Section by obtaining a written guarantee, referred to as a “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 and operators in subsections (f)(1) through (f)(6) of this Section. The wording of the guarantee must be that specified in Section 724.251. A certified copy of the guarantee must accompany the items sent to the Agency, as specified in subsection (f)(3) of this Section. 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, this 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 for the following: |
| A) | If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be) arising from the operation of facilities covered by this guarantee, or if the owner or operator fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, that the guarantor will do so up to the limits of coverage. |
| B) | That the guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Agency. The guarantee must not be terminated unless and until the Agency approves alternative liability coverage complying with Section 724.247 or 35 Ill. Adm. Code 725.247. |
| 2) | The guarantor must execute the guarantee in Illinois. The guarantee must be accompanied by a letter signed by the guarantor that states as follows: |
| A) | The guarantee was signed in Illinois by an authorized agent of the guarantor; |
| B) | The guarantee is governed by Illinois law; and |
| C) | The name and address of the guarantor’s registered agent for service of process. |
| 3) | The guarantor must have a registered agent pursuant to Section 5.05 of the Business Corporation Act of 1983 [805 ILCS 5/5.05] or Section 105.05 of the General Not-for-Profit Corporation Act of 1986 [805 ILCS 105/105.05]. |
| h) | Letter of credit for liability coverage. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this subsection (h), and submitting a copy of the letter of credit to the Agency. |
| 2) | The financial institution issuing the letter of credit must be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Illinois Commissioner of Banks and Trust Companies. |
| 3) | The wording of the letter of credit must be that specified in Section 724.251. |
| 4) | An owner or operator who uses a letter of credit to satisfy the requirements of this Section may also establish a trust fund. Under the terms of such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by the Illinois Commissioner of Banks and Trust Companies, or who complies with the Corporate Fiduciary Act [205 ILCS 620]. |
| 5) | The wording of the standby trust fund must be identical to that specified in Section 724.251(n). |
| i) | Surety bond for liability coverage. |
| 1) | An owner or operator may satisfy the requirements of this Section by obtaining a surety bond that conforms to the requirements of this subsection (i) and submitting a copy of the bond to the Agency. |
| 2) | The surety company issuing the bond must be licensed by the Illinois Department of Insurance. |
| 3) | The wording of the surety bond must be that specified in Section 724.251. |
| j) | Trust fund for liability coverage. |
| 1) | An owner or operator may satisfy the requirements of this Section by establishing a trust fund that conforms to the requirements of this subsection (j) and submitting a signed, duplicate original of the trust agreement to the Agency. |
| 2) | The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by the Illinois Commissioner of Banks and Trust Companies, or who complies with the Corporate Fiduciary Act [205 ILCS 620]. |
| 3) | The trust fund for liability coverage must be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this Section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of liability coverage to be provided, the owner or operator, by the anniversary of the date of establishment of the fund, must either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this Section to cover the difference. For purposes of this subsection (j), “the full amount of the liability coverage to be provided” means the amount of coverage for sudden and non-sudden accidental occurrences required to be provided by the owner or operator by this Section, less the amount of financial assurance for liability coverage that is being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator. |
| 4) | The wording of the trust fund must be that specified in Section 724.251. |
(Source: Amended at 32 Ill. Reg. ________, effective ______________________)
SUBPART I: USE AND MANAGEMENT OF CONTAINERS
| ||
| Section 724.274 | Inspections |
| At least weekly, the owner or operator must inspect areas where containers are stored, | |
| BOARD NOTE: See Sections 724.115(c) and 724.271 for remedial action required if deterioration or leaks are detected. | |
