Section 329IAC11.6-9-1. Financial assurance for cleanup and closure

   (a) Owners or operators that are required to have financial assurance under 329 IAC 11.6-5-1(f), shall establish financial responsibility for closure of the registered facility. The financial responsibility must be provided as a surety bond as specified in subsection (d) in the amount that will provide for closure of the registered facility in the event the owner or operator has failed to close the registered facility.

  (b) The amount that will provide for closure is determined by multiplying the maximum amount, estimated in tons, of residue on-site at any one (1) time by seventy-five dollars ($75).

  (c) The surety bond is established as follows:

(1) On forms:

(A) provided by the commissioner; or

(B) as approved by the commissioner.

(2) All surety bonds must contain the following:

(A) The establishment of minimum bond amount determined by subsection (b).

(B) Provision that the surety will place the amount that will provide for closure into a standby trust fund, as directed by the commissioner, upon notice from the commissioner that the owner or operator has failed to close the facility.

(C) Provision that the surety may not cancel the bond without first sending notice of cancellation by certified mail to the owner or operator and the commissioner at least one hundred twenty (120) days before the effective date of the cancellation.

(D) Provision that the owner or operator may not terminate the bond without prior written authorization by the commissioner.

(3) The surety company issuing the bond must be:

(A) among those listed as acceptable sureties for federal bonds in Circular 570 of the United States Department of the Treasury; and

(B) authorized to do business in Indiana.

(4) The surety will not be liable for deficiencies in the performance of closure by the owner or operator after the closure certification is deemed adequate by the commissioner.

(5) The owner or operator shall establish a standby trust fund to be utilized in the event the owner or operator fails to fulfill closure obligations and the bond guarantee is exercised. Such trust fund must be established in accordance with the following:

(A) On forms provided by the commissioner or forms as approved by the commissioner.

(B) The establishment of a standby trust fund in the amount determined by subsection (b) for commissioner-approved work done to close the facility.

(C) The requirement of successor trustees to notify the commissioner, in writing, of their appointment at least ten (10) days prior to the appointment becoming effective.

(D) The requirement that the funded trust is irrevocable unless terminated in writing by the commissioner.

(E) The requirement that all signatures be notarized by a notary public commissioned to be a notary public in the state of Indiana at the time of notarization.

(F) The requirement that the trustee is authorized to act as a trustee and is an entity whose operations are regulated and examined by a federal agency and state of Indiana agency.

  (d) The owner or operator may use a single surety bond to meet the requirements for more than one (1) facility. Evidence of financial responsibility submitted to the commissioner must include a list showing, for each facility, the following:

(1) The registration number, name, and address.

(2) The amount of funds available through the surety bond that must be not less than the sum of funds that would be available if a separate surety bond had been established and maintained for each facility.

  (e) An owner or operator shall do the following:

(1) Notify the commissioner by certified mail within ten (10) days from commencement of a voluntary or involuntary proceeding under bankruptcy under 11 U.S.C. 101 et seq., October 1, 1979, naming the owner or operator as debtor. An owner or operator who has a surety bond shall be deemed to be without the required financial responsibility in the event of bankruptcy of the institution issuing the surety bond.

(2) Reestablish financial responsibility within sixty (60) days after such an event. The registered facility cannot operate outside the sixty (60) day period without establishing a surety bond for the amount required under subsection (b).

  (f) In addition to any other penalties provided for in this article or in IC 13-14 and IC 13-30, any failure to obtain, maintain, or fund financial assurance as required by this rule within the prescribed time limits shall be grounds for a proceeding to revoke the facility's registration or to order final closure of the registered facility.

  (g) After the closure certification is deemed adequate by the commissioner, the owner or operator of the registered facility is released from the obligation of maintaining financial assurance under this article. (Solid Waste Management Division; 329 IAC 11.6-9-1; filed Jan 30, 2013, 12:31 p.m.: 20130227-IR-329100253FRA)

*