SECTION 37.8031. Financial Assurance Mechanism

(a) An owner or operator subject to this subchapter may use any of the financial assurance mechanisms in Subchapter C of this chapter (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action), to provide financial assurance, except as specified in this section. The mechanisms must ensure that the funds necessary to meet the costs of closure, post closure, or corrective action shall be available when requested by the executive director.

(b) An owner or operator may use a fully funded trust, pay-in trust, or standby trust as provided in §37.201 of this title (relating to Trust Fund), except the pay-in period is ten years or over the remaining life of the municipal solid waste facility, whichever is shorter, unless the owner or operator satisfies the requirements of paragraph (1) of this subsection.

(1) If a pay-in period in excess of ten years is used, the owner or operator shall submit, on an annual basis, certification from an independent registered professional engineer that there is adequate financial assurance for closure or post closure. The owner or operator must:

(A) submit the completed certification on the form provided by the executive director; and

(B) submit the initial certification with the initial trust payment with subsequent annual certifications to be submitted with the subsequent payments which are due no later than 30 days after the anniversary date of the initial payment.

(2) The pay-in trust will revert to a fully funded trust and the entire current closure or post closure cost estimate shall be paid into the trust upon direction of the executive director if:

(A) the owner or operator fails to submit the annual certification by the required time frame in paragraph (1) of this subsection;

(B) the certification is incomplete; or

(C) the certification is not submitted on the form provided by the executive director.

(c) An owner or operator may use a surety bond guaranteeing payment as provided in §37.211 of this title (relating to Surety Bond Guaranteeing Payment), or a surety bond guaranteeing performance as provided in §37.221 of this title (relating to Surety Bond Guaranteeing Performance), except a payment bond may not be used to provide financial assurance for corrective action.

(d) An owner or operator may use insurance as provided in §37.241 of this title (relating to Insurance), except:

(1) insurance may not be used to provide financial assurance for corrective action;

(2) the insurer must be licensed in Texas; and

(3) the following provision found in §37.241(g) of this title does not apply: within 60 days after receiving bills for closure, post closure, or corrective action activities, the executive director shall determine whether the closure, post closure, or corrective action expenditures are in accordance with the approved closure, post closure, or corrective action activities or otherwise justified, and if so, shall instruct the insurer to make reimbursement in such amounts as the executive director specifies in writing.

(e) An owner or operator may use a corporate financial test as provided in §37.8061 of this title (relating to Corporate Financial Test for Municipal Solid Waste Facilities), except the owner or operator may not use the financial test under §37.251 of this title (relating to Financial Test).

Source Note: The provisions of this §37.8031 adopted to be effective March 21, 2000, 25 TexReg 2347