| (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).
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