Section 329IAC10-39-3. Post-closure; financial responsibility

   (a) The permittee shall establish financial responsibility for post-closure care for all the permitted acreage of the solid waste land disposal facility before waste placement, except as provided by subsection (b). The permittee shall choose from the following options:

(1) The trust fund option, including the following:

(A) The permittee shall do as follows:

(i) Establish a trust agreement on:

(AA) forms provided by the commissioner; or

(BB) other forms approved by the commissioner.

(ii) Submit an original signed copy and a duplicate of the trust agreement to the commissioner.

(B) All trust agreements must conform to the requirements detailed in section 2(a)(1)(B) of this rule, with the exception that the term "post-closure" be substituted for the term "closure".

(2) The surety bond option, including the following:

(A) The permittee shall do as follows:

(i) Establish a surety bond on:

(AA) forms provided by the commissioner; or

(BB) other forms approved by the commissioner.

(ii) Submit an original signed copy and a duplicate of the surety bond to the commissioner.

(B) Choose from either of the following types of surety bonds:

(i) A financial guarantee surety bond.

(ii) A performance surety bond.

(C) All surety bonds must conform to the requirements detailed in section 2(a)(2)(C) through 2(a)(2)(F) of this rule, with the exception that the term "post-closure" be substituted for the term "closure".

(3) The letter-of-credit option, including the following:

(A) The permittee shall do as follows:

(i) Establish a letter-of-credit on:

(AA) forms provided by the commissioner; or

(BB) other forms approved by the commissioner.

(ii) Submit an original signed copy and a duplicate of the letter-of-credit to the commissioner.

(B) All letters of credit must conform to the requirements detailed in section 2(a)(3)(B) through 2(a)(3)(D) of this rule, with the exception that the term "post-closure" be substituted for the term "closure".

(4) The insurance option, including the following:

(A) The permittee shall do as follows:

(i) Provide evidence of insurance on:

(AA) forms provided by the commissioner; or

(BB) other forms approved by the commissioner.

(ii) Submit a certificate of post-closure insurance to the commissioner.

(B) All insurance must conform to the requirements detailed in section 2(a)(4)(B) and 2(a)(4)(C) of this rule, with the exception that the term "post-closure" be substituted for the term "closure".

(5) The financial test for restricted waste sites option, including the following:

(A) This financial test is only available for restricted waste sites.

(B) If a permittee meets the criteria and conforms to the requirements set forth in section 2(a)(5)(A) through 2(a)(5)(F) or 2(a)(5)(G) of this rule, the permittee shall be deemed to have established financial responsibility.

(6) The local government financial test option, including the following:

(A) This financial test is only available for permittees that are local governments. As used in this subdivision, "local government" means a county, municipality, township, or solid waste management district.

(B) If a permittee meets the criteria set forth in section 2(a)(6)(B) and 2(a)(6)(C)of this rule, the permittee shall be deemed to have established financial responsibility.

(C) If, at any time, the permittee fails to meet the financial test, the permittee shall establish an alternate financial responsibility mechanism within one hundred twenty (120) days after the end of the fiscal year for which the financial data required by this clause shows that the permittee no longer meets the requirements.

(D) The commissioner may disallow use of this test on the basis of qualifications in the opinion expressed in the state board of accounts' annual financial audit of the permittee. An adverse opinion or a disclaimer of opinion is cause for disallowance. Other qualifications may be cause for disallowance if, in the opinion of the commissioner, the qualifications indicate the permittee does not meet the requirements of this subdivision. The permittee shall choose an alternate financial responsibility mechanism within ninety (90) days after notification of the disallowance.

(7) The local government guarantee option. If the local government guarantor and the permittee meet the requirements of section 2(a)(7)(B) and 2(a)(7)(C) of this rule, the permittee shall be deemed to have established financial responsibility.

  (b) The permittee shall choose a financial responsibility mechanism, as provided in subsection (a), that guarantees funds will be available to meet the post-closure requirements of the solid waste land disposal facility, including the following:

(1) As applicable, funding must equal the amount determined under:

(A) 329 IAC 10-23-3(c)(5) and 329 IAC 10-23-3(c)(6);

(B) 329 IAC 10-31-3(b)(4); or

(C) 329 IAC 10-38-3(b)(4).

(2) Except for the trust fund mechanism, the permittee may completely fund the post-closure care amount, as determined under subdivision (1), based on the following formula and before the placement of any waste in the permitted area that is certified to receive waste:

Where:	CA	=	Total of existing acres certified to receive waste and acres that received waste previously.
	TPA	=	Total permitted acres.
	TRA	=	Total projected acres that will be certified to receive waste within the current annual update year, which is June 15 to June 15.
	PC(f)	=	Fixed post-closure costs.
	PC(o)	=	All other post-closure costs but fixed post-closure costs.
	C	=	Contingencies, which equals 1.25.
	PCF	=	Post-closure funding.

Fixed costs include semiannual inspections and reports, access control and benchmark maintenance, ground water monitoring and well maintenance, and methane gas monitoring and maintenance.

(3) For only the trust fund mechanism, funding may also be accomplished by making annual payments equal to the amount determined by the formula:

Where:	CE	=	The current total post-closure cost estimate as determined by subdivision (1).
	CV	=	The current value of the trust fund.
	Y	=	The number of years in the term of the original permit, which is five (5) years or less, or over the remaining life of the solid waste land disposal facility, whichever is shorter.

Annual funding must be accomplished not later than June 15 of each year.

  (c) The permittee shall submit an annual update for the amount calculated under subsection (b) for inflation and for changes in the post-closure plan that increase the costs of post-closure, not later than June 15 of each year to the commissioner during the active life of the landfill and until post-closure certification is deemed adequate. The permittee shall do the following:

(1) During the active life of the facility and until post-closure certification is deemed adequate, the permittee shall adjust the post-closure cost estimate for inflation prior to June 15 of each year. The adjustment for inflation shall be done with either of the following methods:

(A) Recalculating the post-closure cost estimate in current dollars.

(B) Using an inflation factor derived from the most recent implicit price deflator for gross national product published by the U.S. Department of Commerce in its Survey of Current Business, specified as follows:

(i) The first adjustment is made by multiplying the post-closure cost estimate as specified in subsection (b) by the inflation factor, with the result being the adjusted post-closure cost estimate.

(ii) Subsequent adjustments are made by multiplying the latest adjusted post-closure cost estimate by the latest inflation factor.

(2) During the active life of the facility, the permittee shall revise the post-closure cost estimate not later than thirty (30) days after the commissioner has approved the request to modify the post-closure plan, if the change in the post-closure plan increases the cost of post-closure care. The revised post-closure cost estimate must be adjusted for inflation as specified in subdivision (1).

(3) For permittees using the financial test or guarantee, the post-closure care cost estimate must be updated for inflation annually before June 15 of each year.

  (d) If the formula in subsection (b)(2) is used, the permittee shall itemize separately both the fixed costs and all other costs. (Solid Waste Management Division; 329 IAC 10-39-3; filed Mar 14, 1996, 5:00 p.m.: 19 IR 1922; filed Feb 26, 1999, 5:45 p.m.: 22 IR 2235; filed Aug 2, 1999, 11:50 a.m.: 22 IR 3871; filed Feb 9, 2004, 4:51 p.m.: 27 IR 1870, eff Apr 1, 2004; filed Jul 10, 2007, 2:26 p.m.: 20070808-IR-329050167FRA; filed May 14, 2014, 11:02 a.m.: 20140611-IR-329110454FRA)