49-770. Financial assurance requirements for solid waste facilities

A. Beginning one hundred eighty days after the effective date of the design and operation rules adopted by the director for that type of solid waste facility pursuant to section 49-761, a solid waste facility may not be operated unless financial responsibility has been demonstrated for the costs of closure, postclosure care, if necessary, and any corrective action as a result of known releases from the facility. Financial assurance for municipal solid waste landfills shall be required pursuant to section 49-761, subsection B. This subsection applies to small municipal solid waste landfills on October 9, 1997. For all other municipal solid waste landfills, this subsection shall apply on September 1, 1997 unless the director establishes an alternative date pursuant to section 49-761, subsection B on a facility specific basis.

B. Within one hundred eighty days after the effective date of the design and operation rules adopted by the director for that type of solid waste facility pursuant to section 49-761, existing solid waste facilities shall modify and submit existing facility plans to the department to demonstrate the financial responsibility required by this section. A solid waste facility in operation before the effective date of the design and operation rules adopted by the director for that type of solid waste facility pursuant to section 49-761 may continue to operate while the department reviews the modified plan.

C. A demonstration of financial responsibility made for a solid waste facility under chapter 2, article 3 of this title shall suffice, in whole or in part, for any demonstration of financial responsibility prescribed by this section. A demonstration of financial assurance or competence required under this section or under chapter 2, article 3 of this title for a solid waste facility shall not be required prior to completion of construction but shall be required before the department issues approval to operate.

D. The terms and conditions adopted by the director for each financial assurance mechanism shall provide:

1. The amount in current dollars equal to the cost of hiring a third party to complete site closure and, if necessary, continued postclosure monitoring and maintenance consistent with the plan and any factor to be applied for inflation. Amounts shall be updated annually for landfills and every three years for all other solid waste facilities to adjust for inflation or as necessary to reflect increased costs resulting from changes to the facility plan or facility conditions.

2. The period after closure for which financial assurance is required.

E. The approved financial assurance mechanism shall not be released unless the plan specified closure and postclosure requirements have been completed or unless new financial assurance has been submitted by a new owner or operator of the solid waste facility and approved by the director. The owner or operator of the solid waste facility:

1. Shall receive any accrued interest on financial assurance instruments retained by the department.

2. May request a reduction in financial assurance requirements on completion of closure or portions of postclosure monitoring and maintenance that are approved by the director.

3. Shall justify any reduction in closure or postclosure cost estimates in the facility plan.

4. Shall assure that the period of coverage of the financial assurance instrument exceeds by a minimum of ninety days the applicable one or three year time period required in subsection D of this section.

5. Shall be released from closure or postclosure financial responsibility on certification by a registered professional engineer or other environmental professional deemed acceptable by the director that the specific activities of closure or postclosure have been completed in accordance with the approved facility plan and placed in the operating record of the facility plan.