Section 329IAC16-11-2. Trust fund for closure and cleanup

   An owner, operator, or registrant that chooses to meet the financial assurance requirement of this article through a trust fund shall establish the trust fund for financial assurance in accordance with the following requirements:

(1) The trust fund is established on forms:

(A) provided by the commissioner; or

(B) approved by the commissioner.

(2) Each trust agreement must do the following:

(A) Identify facilities and corresponding closure cost estimates covered by the trust agreement.

(B) Establish a trust fund in an amount determined by section 1(b) of this rule that guarantees that payments from that fund either:

(i) reimburse the owner, operator, or registrant of the facility for department-approved closure work done; or

(ii) pay the department for doing required closure work.

(C) Require that annual valuations of the trust be submitted to the commissioner.

(D) Require successor trustees to notify the commissioner, in writing, of their appointment at least ten (10) days before the effective date of the appointment.

(E) Require the trustee to notify the commissioner, in writing, of the failure of the owner, operator, or registrant of the facility to make a required payment into the fund.

(F) Establish that the trust is irrevocable unless terminated, in writing, with the approval of the:

(i) owner, operator, or registrant of the facility;

(ii) trustee; and

(iii) commissioner.

(G) Certify that the signer of the trust agreement for the owner, operator, or registrant of the facility was duly authorized to bind the owner, operator, or registrant of the facility.

(H) All signatures must be notarized by a notary public commissioned to be a notary public in Indiana at the time of the notarization.

(I) Establish that the trustee is:

(i) authorized to act as a trustee; and

(ii) an entity whose operations are regulated and examined by a federal or state of Indiana agency.

(3) Before the facility begins operation, the owner, operator, or registrant shall:

(A) deposit into the trust fund the amount determined by section 1(b) of this rule; and

(B) submit to the commissioner a receipt from the trustee for the payment into the trust fund.

(4) If the owner, operator, or registrant establishes a trust fund after having used one (1) or more alternative mechanisms, the payment into the trust fund must be in the amount determined by section 1(b) of this rule.

(5) The trustee shall evaluate the trust fund annually, as of the day the trust was created or on an earlier date as may be provided in the agreement. The trustee shall notify the owner, operator, or registrant of the facility and the commissioner within thirty (30) days after the evaluation date.

(6) Release of excess funds may be requested as follows:

(A) If the value of the financial assurance is greater than the total amount of the current cost estimate, the owner, operator, or registrant of the facility may submit a written request to the commissioner for release of the amount in excess of the current cost estimate.

(B) Within sixty (60) days after receiving a request from the owner, operator, or registrant of the facility for a release of funds, the commissioner shall instruct the trustee to release to the owner, operator, or registrant of the facility the funds the commissioner specifies in writing to be in excess of the current cost estimate.

(7) Reimbursement for removal expenses may be requested as follows:

(A) After initiating removal, the owner, operator, or registrant of the facility, or any other person authorized to perform removal, may request reimbursement for removal expenditures by submitting itemized bills to the commissioner.

(B) Within sixty (60) days after receiving the itemized bills for removal activities, the commissioner shall determine whether the expenditures are in accordance with the removal plan. The commissioner shall instruct the trustee to make reimbursement in the amounts the commissioner specifies in writing in accordance with the removal plan.

(C) If the commissioner determines, based on available information, that the cost of removal will be greater than the value of the trust fund, the commissioner shall withhold reimbursement of the amounts necessary to accomplish removal until it is determined that the owner, operator, or registrant of the facility is no longer required to maintain financial assurance for removal. In the event the fund is inadequate to pay all claims, the commissioner shall pay claims according to the following priority:

(i) A person with whom the department has contracted to perform removal activities.

(ii) A person who has completed removal authorized by the commissioner.

(iii) A person who has completed work that furthered the removal.

(iv) The owner, operator, or registrant of the facility and related business entities.

(Solid Waste Management Division; 329 IAC 16-11-2; filed Jan 23, 2015, 10:34 a.m.: 20150218-IR-329140019FRA)