SECTION 37.9185. Trust Fund Requirements

(a) An owner or operator may satisfy the requirements of financial assurance by establishing a fully funded trust that conforms to the requirements of this subchapter and by submitting an originally signed duplicate of the executed trust agreement to the executive director.

(b) The trustee must be an entity that 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 §37.9190(a) of this title (relating to Trust Agreement Wording), including a formal certification of acknowledgment as specified in §37.9190(b) of this title.

(d) Schedule A of the trust agreement as specified in §37.9190(a) of this title must be updated within 60 days after an approved change in the amount of the current cost estimate.

(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) After the initial payment for a fully funded 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.

(g) 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.

(h) Within 60 days after receiving a request from the owner or operator for release of funds as specified in subsection (g) 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.

(i) An owner or operator or any other person authorized by the executive director to perform reclamation at the quarry or restoration related to the quarry, may request reimbursement expenditures for reclamation at the quarry or restoration related to the quarry 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 reclamation or restoration only if sufficient funds are remaining in the trust fund to cover the maximum remaining costs for reclamation at the quarry or restoration related to the quarry. After receiving bills for reclamation or restoration 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 reclamation or restoration expenditures are in accordance with the approved reclamation or restoration plan activities, or are otherwise justified. If the executive director has reason to believe that the cost of reclamation at the quarry or restoration related to the quarry 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 reclamation or restoration.

(j) 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 §37.9185 adopted to be effective August 3, 2006, 31 TexReg 5971