| (B) replacing Recital number 5 with "Guarantor agrees
that if, at the end of any fiscal year before termination of this
guarantee, the guarantor fails to meet the financial test criteria,
guarantor shall send within 90 days, by certified mail, notice to
the TCEQ executive director and to (owner or operator) that the guarantor
intends to provide alternate financial assurance as specified in 30
Texas Administrative Code §335.703 (relating to Financial Assurance
Requirements), as applicable, in the name of (owner or operator).
Within 120 days after the end of such fiscal year, the guarantor shall
establish such financial assurance unless (owner or operator) has
done so";
(C) replacing Recital number 7 with "Guarantor agrees
that within 30 days after being notified by the TCEQ executive director
of a determination that guarantor no longer meets the financial test
criteria or is disallowed from continuing as a guarantor of (closure,
post closure, or corrective action), guarantor shall establish alternate
financial assurance as specified in 30 Texas Administrative Code §335.703
(relating to Financial Assurance Requirements) in the name of (owner
or operator) unless (owner or operator) has done so";
(D) replacing Recital number 11 with "Guarantor agrees
that if (owner or operator) fails to provide alternate financial assurance
as specified in 30 Texas Administrative Code §335.703 (relating
to Financial Assurance Requirements), and obtain written approval
of alternate financial assurance from the TCEQ executive director
within 90 days after a notice of termination by the guarantor is received
by the TCEQ executive director from guarantor, guarantor shall provide
such alternate financial assurance in the name of the (owner or operator)";
and
(E) The wording of the certification statement at the
end of the Corporate Guarantee shall be replaced with the following
language identified by quotation marks "I hereby certify that the
wording of this guarantee is identical to the wording specified in
30 Texas Administrative Code §37.361 (relating to Corporate Guarantee)
as modified by 30 Texas Administrative Code §335.703 (relating
to Financial Assurance Requirements) as such regulations were constituted
on the date first above written."
(f) An owner or operator of a reclamation or intermediate
facility, or a group of facilities, subject to financial assurance
requirements under 40 CFR §261.4(a)(24) shall establish and maintain
financial assurance for bodily injury and property damage to third
parties caused by sudden accidental occurrences arising from operations
of the facility or group of facilities. The owner or operator must
have and maintain liability coverage for sudden accidental occurrences
in the amount of at least $1 million per occurrence with an annual
aggregate of at least $2 million, exclusive of legal defense costs.
(g) An owner or operator of a reclamation or intermediate
facility, or group of facilities, with a land-based unit as defined
in §335.1 of this title shall establish and maintain financial
assurance for bodily injury and property damage to third parties caused
by nonsudden accidental occurrences arising from operations of the
facility or group of facilities. The owner or operator must have and
maintain liability coverage for nonsudden accidental occurrences in
the amount of at least $3 million per occurrence with an annual aggregate
of at least $6 million, exclusive of legal defense costs.
(h) An owner or operator who must meet the requirements
of subsections (f) and (g) of this section may combine the required
per-occurrence coverage levels for sudden and nonsudden accidental
occurrences into a single per-occurrence level, and combine the required
annual aggregate level. Owners or operators who combine coverage levels
for sudden and nonsudden accidental occurrences must maintain liability
coverage in the amount of $4 million per occurrence and $8 million
annual aggregate.
(i) Owners or operators of a reclamation facility or
intermediate facility, or a group of facilities, subject to financial
assurance requirements under 40 CFR §261.4(a)(24) must also comply
with Chapter 37, Subchapters A and E of this title (relating to General
Financial Assurance Requirements; and Financial Assurance Requirements
for Liability Coverage) and shall use any of the mechanisms specified
in Chapter 37, Subchapter F of this title (relating to Financial Assurance
Mechanisms for Liability) to meet the liability requirements of this
section except:
(1) liability insurance may only be demonstrated by
providing an Endorsement for Liability as specified in §37.641
of this title (relating to Endorsement for Liability); and
(2) when using the financial test in accordance with §37.541
of this title (relating to Financial Test for Liability) the financial
assurance amounts required by of this section, for hazardous secondary
materials excluded under 40 CFR §261.4(a)(24) must be included
as an additional environmental obligation.
(j) An owner or operator of a reclamation facility,
an intermediate facility, or a group of facilities required by 40
CFR §261.4(a)(24) to provide financial assurance demonstrating
liability coverage shall comply with the requirements of Chapter 37,
Subchapter G of this title (relating to Wording of the Mechanisms
for Liability) for the mechanisms required by subsection (i) of this
section except The Chief Financial Officer's letter associated with
the financial test for liability specified in §37.651 of this
title (relating to Financial Test for Liability), must include the
financial assurance amounts required by this section, for hazardous
secondary materials excluded under 40 CFR §261.4(a)(24) as an
additional environmental obligation in paragraph 5(f) of the Chief
Financial Officer's Letter in Figure: 30 TAC §37.351.
(k) If the state of Texas either assumes legal responsibility
for an owner's or operator's compliance with the closure, post closure,
corrective action, or liability requirements of this chapter, or assures
that funds will be available from state sources to cover those requirements,
the owner or operator will be in compliance with the requirements
of this chapter if the executive director determines that the state's
assumption of responsibility is at least equivalent to the financial
mechanisms specified in this chapter. The executive director will
evaluate the equivalency of state guarantees principally in terms
of certainty of the availability of funds for the required closure,
post closure, or corrective action activities, or liability coverage;
and the amount of funds that will be made available. The executive
director may also consider other factors as the executive director
deems appropriate. The owner or operator must submit to the executive
director a letter from the State of Texas describing the nature of
the state's assumption of responsibility together with a letter from
the owner or operator requesting that the state's assumption of responsibility
be considered acceptable for meeting the requirements of this chapter.
The letter from the state must include the following information:
the facility's permit number and/or solid waste registration number,
name, physical and mailing addresses, and the amount of funds for
closure, post closure, or corrective action or liability coverage
that are guaranteed by the state. The executive director will notify
the owner or operator of the determination regarding the acceptability
of the state's guarantee in lieu of financial mechanisms specified
in this chapter. The executive director may require the owner or operator
to submit additional information as is deemed necessary to make this
determination. Upon approval by the executive director, the owner
or operator will be deemed to be in compliance with the requirements
of this chapter. If the State of Texas' assumption of responsibility
is found acceptable as specified in this section except for the amount
of funds available, the owner or operator may satisfy the requirements
of this chapter by use of both the state's assurance and additional
financial mechanisms as specified in this chapter. The amount of funds
available through the state and the owner or operator's mechanisms
shall equal at least the required amount.
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