SECTION 37.201. Trust Fund

(a) An owner or operator may satisfy the requirements of financial assurance by establishing either a fully funded trust or a pay-in trust which conforms to the requirements of this section, in addition to the requirements specified in Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action), and submitting an originally signed duplicate of the executed trust agreement to the executive director.

(b) The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

(c) The wording of the trust agreement must be identical to the wording specified in §37.301(a) of this title (relating to Trust Agreement) including a formal certification of acknowledgment as specified in §37.301(b) of this title.

(d) Schedule A of the trust agreement as specified in §37.301(a) of this title must be updated within 60 days after an approved change in the amount of the current cost estimate or annual inflation adjustments.

(e) A fully funded trust requires that the initial payment into the trust fund be at least equal to the current cost estimate, or when a combination of mechanisms are used in accordance with §37.41 of this title (relating to Use of Multiple Financial Assurance Mechanisms), the initial payment plus the amount of the combined mechanism(s) must be at least equal to the current cost estimate. A receipt from the trustee for the initial payment must be submitted by the owner or operator to the executive director with the originally signed duplicate of the trust agreement.

(f) In the case of a pay-in trust for closure or post closure, payments into the trust fund must be made annually by the owner or operator over the term of the initial permit or over the remaining life of the facility, whichever is shorter. In the case of a pay-in trust for corrective action for known releases, the payments into the trust fund must be made annually by the owner or operator over one-half of the estimated length of the corrective action program. The periods referred to in this subsection are the pay-in periods. The payments into the trust fund must be made in accordance with this subsection. During the period of post closure, a pay-in trust for post closure may not be used.

(1) For a pay-in trust used to demonstrate financial assurance for closure and post closure, the first payment into the fund must be at least equal to the current cost estimate for closure or post closure, less the amount of the combined mechanisms, divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of subsequent payments must be determined by the following formula:

Attached Graphic

(2) For a pay-in trust used to demonstrate financial assurance for corrective action, the first payment into the trust fund must be at least equal to one-half of the current cost estimate for corrective action, less the amount of the combined mechanisms, divided by the number of years in the corrective action pay-in period. The amount of subsequent payments must be determined by the following formula:

Attached Graphic

(3) The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current cost estimate at the time the fund is established. However, the owner or operator must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraphs (1) or (2) of this subsection.

(4) If the owner or operator establishes a trust fund after having used another financial assurance mechanism, the first payment must be at least equal to the amount that the fund would contain if the trust fund was established when the permit was initially issued, and subsequent payments must be made as specified in paragraphs (1) or (2) of this subsection.

(g) After the initial payment for a fully funded trust or after the pay-in period is completed for a pay-in trust, whenever the current cost estimate changes, the owner or operator must compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new estimate, the owner or operator, within 30 days after the change in the current cost estimate, must either deposit an amount into the fund so that its value after this deposit at least equals the amount of the current cost estimate, or obtain an additional financial assurance mechanism as specified in this subchapter to cover the difference.

(h) If the value of the trust fund is greater than the total amount of the current cost estimate, the owner or operator may submit a written request to the executive director for release of the amount in excess of the current cost estimate.

(i) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection (h) of this section, the executive director shall instruct the trustee to release to the owner or operator such funds as the executive director specifies in writing.

(j) An owner or operator or any other person authorized by the executive director to perform closure, post closure, or corrective action may request reimbursement for closure, post closure, or corrective action expenditures by submitting itemized bills to the executive director. The request shall include an explanation of the expenses and all applicable itemized bills. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. After receiving bills for closure, post closure, or corrective action activities, the executive director shall instruct the trustee to make reimbursement in such amounts as the executive director specifies in writing, if the executive director determines that the partial or final closure, post closure, or corrective action expenditures are in accordance with the approved closure plan, post closure plan, or corrective action activities, or are otherwise justified. If the executive director has reason to believe that the cost of closure, post closure, or corrective action over the remaining life of the facility will be greater than the value of the trust fund, the executive director may withhold reimbursement of such amounts as deemed prudent until it is determined, in accordance with Subchapters A and B of this chapter (relating to General Financial Assurance Requirements and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action) that the owner or operator is no longer required to maintain financial assurance for final closure, post closure, or corrective action at the facility.

(k) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, the owner or operator may submit a written request to the executive director for release of the amount in excess of the current cost estimate covered by the trust fund.

Source Note: The provisions of this §37.201 adopted to be effective December 30, 1996, 21 TexReg 12297; amended to be effective March 21, 2000, 25 TexReg 2347