OAR 340-094-0140: Financial Assurance Criteria

If a municipal solid waste landfill is subject to 40 CFR, Part 258 as provided in 40 CFR, §258.1, the owner or operator shall comply with financial assurance criteria in 40 CFR, Part 258, Subpart G. All municipal solid waste permittees shall also comply with this rule. (1) Financial Assurance Required. The owner or operator of a municipal solid waste landfill shall maintain a financial assurance plan with detailed written cost estimates of the amount of financial assurance that is necessary and shall provide evidence of financial assurance for the costs of: (a) Closure of the municipal solid waste landfill; (b) Post-closure maintenance of the municipal solid waste landfill; and (c) Any corrective action required by the Department to be taken at the municipal solid waste landfill, pursuant to OAR 340-094-0080(3). (2) Exemptions. The Department may exempt from the financial assurance requirements existing municipal solid waste landfills which stopped receiving waste before October 9, 1993 or which stopped receiving waste before April 9, 1994, if a “small landfill” meeting criteria in 40 CFR, §258.1(e)(2), and completed installation of final cover by October 9, 1994. The Department may also exempt from the financial assurance requirements an existing “very small landfill serving certain small communities” meeting criteria in 40 CFR, §258.1(f)(1), if such a landfill stops receiving waste before October 9, 1997 and completes installation of final cover by October 9, 1998. (a) Exemption criteria. To be eligible for this exemption, the applicant shall demonstrate to the satisfaction of the Department that the site meets all of the following criteria and that the site is likely to continue to meet all of these criteria until the site is closed in a manner approved by the Department: (A) The landfill poses no significant threat of adverse impact on groundwater or surface water; (B) The landfill poses no significant threat of adverse impact on public health or safety; (C) No system requiring active operation and maintenance is necessary for controlling or stopping discharges to the environment; (D) The area of the landfill that has been used for waste disposal and has not yet been properly closed in a manner acceptable to the Department is less than and remains less than two acres or complies with a closure schedule approved by the Department. (b) In determining if the applicant has demonstrated that a site meets the financial assurance exemption criteria, the Department will consider existing available information including, but not limited to, geology, soils, hydrology, waste type and volume, proximity to and uses of adjacent properties, history of site operation and construction, previous compliance inspection reports, existing monitoring data, the proposed method of closure and the information submitted by the applicant. The Department may request additional information if needed; (c) An exemption from the financial assurance requirement granted by the Department will remain valid only so long as the site continues to meet the exemption criteria in subsection (2)(a) of this rule. If the site fails to continue to meet the exemption criteria, the Department may modify the closure permit to require financial assurance. (3) Schedule for provision of financial assurance: (a) For costs associated with the “worst-case” closure plan and the “Subtitle D” post-closure plan prepared pursuant to 40 CFR, Subparts F and G and OAR 340-094-0010(1)(a)(A) and 340-094-0115(1)(a), respectively: Evidence of the required financial assurance for closure and post-closure maintenance of the landfill shall be provided on the following schedule: (A) For a new municipal solid waste landfill: no later than the time the solid waste permit is issued by the Department and prior to first receiving waste; (B) For a regional disposal site operating under a solid waste permit on November 4, 1993: by May 4, 1994; (C) For other municipal solid waste landfills operating under a solid waste permit on November 4, 1993: by April 9, 1997; or (D) For a “very small landfill serving certain small communities” meeting criteria in 40 CFR, §258.1(f)(1) and operating under a solid waste permit on November 4, 1993: by October 9, 1997. (b) For costs associated with the Final Engineered Site Closure Plan and the Final Engineered Post-closure Plan prepared pursuant to OAR 340-094-0110(1)(a)(B) and 340-094-0115(1)(b) respectively: Evidence of the required financial assurance for closure and post-closure maintenance of the landfill shall be provided at the same time those two Plans are due to the Department; (c) Evidence of financial assurance for corrective action shall be provided before beginning corrective action; (d) Continuous financial assurance shall be maintained for the facility until the permittee or other person owning or controlling the site is no longer required to demonstrate financial responsibility for closure, post-closure care or corrective action (if required). (4) Financial assurance plans. The financial assurance plan is a vehicle for determining the amount of financial assurance necessary and demonstrating that financial assurance is being provided. A financial assurance plan shall include but not be limited to the following, as applicable: (a) Cost Estimates. A detailed written estimate of the third-party costs in current dollars according to the provisions of 40 CFR, §258.75. A landfill owner or operator meeting the criteria in 40 CFR §258.75(a)–(c) may estimate the current dollar cost using a discount rate no greater than the Department’s current reference rate. The Department shall determine the reference rate annually during the month of June. It shall be in effect for the fiscal year beginning on the first day of July immediately following the determination date and ending on June 30 of the following calendar year. (The reference rate shall be based on the current yield of composite long-term U.S. Treasury Bonds as published in the Federal Reserve’s H.15 (519) Selected Interest Rates for the first full week of the month in which the reference rate is determined, less the annualized Gross Domestic Product implicit price deflator as published in the most recent U.S. Bureau of Economic Analysis Survey of Current Business.) The written estimate shall be prepared by a Registered Professional Engineer and shall include costs of: (A) Closing the municipal solid waste landfill; (B) Providing post-closure care, including installing, operating and maintaining any environmental control system required on the landfill site; (C) Performing required corrective action activities; and (D) Complying with any other requirement the Department may impose as a condition of issuing a closure permit, closing the site, maintaining a closed facility, or implementing corrective action. (b) The source of the cost estimates; (c) A detailed description of the form of the financial assurance and a copy of the financial assurance mechanism; (d) A method and schedule for providing for or accumulating any required amount of funds which may be necessary to meet the financial assurance requirement; (e) A proposal with provisions satisfactory to the Department for disposing of any excess moneys received or interest earned on moneys received for financial assurance, if applicable. (A) To the extent practicable and to the extent allowed by any franchise agreement, the applicant’s provisions for disposing of the excess moneys received or interest earned on moneys shall provide for: (i) A reduction of the rates a person within the area served by the municipal solid waste landfill is charged for solid waste collection service as defined by ORS 459.005; or (ii) Enhancing present or future solid waste disposal facilities within the area from which the excess moneys were received. (B) If the municipal solid waste landfill is owned and operated by a private entity not regulated by a unit of local government, excess moneys and interest remaining in any financial assurance reserve shall be released to that business entity after post-closure care has been completed and the permittee is released from permit requirements by the Department. (f) Adequate accounting procedures to insure that the permittee does not collect or set aside funds in excess of the amount specified in the financial assurance plan or any updates thereto or use the funds for any purpose other than required by paragraph (8)(a) of this rule; (g) The certification required by subsection (6)(c) of this rule; and (h) The annual updates required by subsection (6)(e) of this rule. (5) Amount of Financial Assurance Required. The amount of financial assurance required shall be established as follows: (a) Closure. Detailed cost estimates for closure shall be based on the “worst-case” closure plan or the Final Engineered Site Closure Plan, as applicable. Cost estimates for the Final Engineered Site Closure Plan shall take into consideration at least the following: (A) Amount and type of solid waste deposited in the site; (B) Amount and type of buffer from adjacent land and from drinking water sources; (C) Amount, type, availability and cost of required cover; (D) Seeding, grading, erosion control and surface water diversion required; (E) Planned future use of the disposal site property; (F) The portion of the site property closed before final closure of the entire site; and (G) Any other conditions imposed on the permit relating to closure of the site. (b) Post-closure care. Detailed cost estimates for post-closure care shall be based on the “Subtitle D” post-closure plan or the Final Engineered Post-closure Plan, as applicable. Cost estimates for the Final Engineered Post-closure Plan shall also take into consideration at least the following: (A) Type, duration of use, initial cost and maintenance cost of any active system necessary for controlling or stopping discharges; and (B) Any other conditions imposed on the permit relating to post-closure care of the site. (c) Corrective action. Estimated total costs of required corrective action activities for the entire corrective action period, as described in a corrective action report pursuant to requirements of OAR 340-094-0080(3) and 40 CFR, §258.73; (d) If a permittee is responsible for providing financial assurance for closure, post-closure care and/or corrective action activities at more than one municipal solid waste landfill, the amount of financial assurance required is equal to the sum of all cost estimates for each activity at each facility. (6) How Financial Assurance Is to Be Provided and Updated: (a) The permittee shall submit to the Department a copy of the first financial assurance mechanism prepared in association with a “worst-case” closure plan, a Final Engineered Site Closure Plan, a “Subtitle D” post-closure plan, a Final Engineered Post-closure Plan, and a corrective action report; (b) The permittee shall also place a copy of the applicable financial assurance plan(s) in the facility operating record on the schedule specified in section (3) of this rule; (c) The permittee shall certify to the Director at the time a financial assurance mechanism is submitted to the Department and when a financial assurance plan is placed in the facility operating record that the financial assurance mechanism meets all state and federal requirements. This date becomes the “annual review date” of the provision of financial assurance, unless a corporate guarantee is used, in which case the annual review date is 90 days after the end of the corporation’s fiscal year; (d) If a permittee uses a discount rate to estimate costs pursuant to subsection (4)(a) of this rule, the permittee shall prospectively for each year the discount rate is used: (A) Certify to the Director that the landfill closure date is certain and there are no foreseeable factors that will change the estimate of site life; and (B) Submit a certification to the Director from a Registered Professional Engineer stating the cost estimates are complete and accurate. (e) Annual update. The permittee shall annually review and update the financial assurance during the operating life and post-closure care period, or until the corrective action is completed, as applicable. (A) The annual review shall include: (i) An adjustment to the cost estimate(s) for inflation and, if used, in the discount rate as specified in subsection (4)(a) of this rule; (ii) A review of the closure, post-closure care and corrective action (if required) plans and facility conditions to assess whether any changes have occurred which would increase or decrease the estimated maximum costs of closure, post-closure care or corrective action since the previous review; (iii) If a trust fund or other pay-in financial mechanism is being used, an accounting of amounts deposited and expenses drawn from the fund, as well as its current balance. (B) The financial assurance mechanism(s) shall be increased or may be reduced to take into consideration any adjustments in cost estimates identified in the annual review; (C) The annual update shall consist of a certification from the permittee submitted to the Department and placed in the facility operating record. The certification shall state that the financial assurance plan(s) and financial assurance mechanism(s) have been reviewed, updated and found adequate, and that the updated documents have been placed in the facility operating record. If a discount rate is used to estimate costs, the annual update shall include the certifications in subsection (6)(d) of this rule. The annual update shall be no later than: (i) The facility’s annual review date; or (ii) For a facility operating under a closure permit, by the date specified in OAR 340-094-0100(3). (7) Department Review of Financial Assurance and Third-Party Certification: (a) The Department may at any time select a permittee to submit financial assurance plan(s) and financial assurance mechanism(s) for Department review. Selection for review will not occur more frequently than once every five years, unless the Department has reasonable cause for more frequent selection. The Department may, however, review such plans and mechanisms in conjunction with a site inspection at any time; (b) A permittee who wants to provide “alternative financial assurance” pursuant to OAR 340-094-0145(6)(i) shall submit its financial assurance plan and proposed financial assurance mechanism for Department review and approval on the schedule specified in section (3) of this rule. The submittal shall include certification from a qualified third party that the financial assurance mechanism meets all state and federal requirements for financial assurance including criteria in OAR 340-094-0145(6)(i), and is reasonably designed to provide the required amount of financial assurance. The third-party certification shall be submitted in a format acceptable to the Department; (c) The Department will review the financial assurance and the third-party certification, if applicable, for compliance with applicable laws. (8) Accumulation of any financial assurance funds: (a) The financial assurance mechanisms for closure, post-closure care and corrective action shall ensure the funds will be available in a timely fashion when needed. The permittee shall pay moneys into a trust fund in the amount and at the frequency specified in the financial assurance plan or obtain other financial assurance mechanisms as specified in the financial assurance plan, on the schedule specified in section (3) of this rule: (A) Closure. The total amount of financial assurance required for closure shall be available in the form specified in the financial assurance plan or any updates thereto, whenever final closure of a municipal solid waste landfill unit is scheduled to occur in the “worst case” closure plan or in the Final Engineered Site Closure Plan; (B) Post-closure care. The total amount of financial assurance required for post-closure care shall be available in the form specified in the financial assurance plan or any updates thereto, whenever post-closure care is scheduled to begin for a municipal solid waste landfill unit in the “Subtitle D” post-closure plan or in the Final Engineered Post-closure Plan; (C) Corrective action. The total amount of financial assurance required for corrective action shall be available in the form specified in the financial assurance plan or any updates thereto on the schedule specified in 40 CFR, §258.74. (b) The permittee is subject to audit by the Department (or Secretary of State) and shall allow the Department access to all records during normal business hours for the purpose of determining compliance with this rule and OAR 340-094-0145; (c) If the Department determines that the permittee did not set aside the required amount of funds for financial assurance in the form and at the frequency required by the applicable financial assurance plan, or if the Department determines that the financial assurance funds were used for any purpose other than as required in section (1) of this rule, the permittee shall, within 30 days after notification by the Department, deposit a sufficient amount of financial assurance in the form required by the applicable financial assurance plan along with an additional amount of financial assurance equal to the amount of interest that would have been earned, had the required amount of financial assurance been deposited on time or had it not been withdrawn for unauthorized use; (d) If financial assurance is provided under OAR 340-094-0145(6)(a), (b), or (i), upon successful closure and release from permit requirements by the Department, any excess money in the financial assurance account must be used in a manner consistent with subsection (4)(e) of this rule.