| (a) Applicability.
(1) The requirements of this section apply to owners
or operators of reclamation facilities and intermediate facilities
managing hazardous secondary materials excluded under 40 Code of Federal
Regulations (CFR) §261.4(a)(24), except:
(2) States and the Federal government are exempt from
the financial assurance requirements of this section.
(b) When used in this section, the following words
and terms shall have the same meanings as the definitions in §37.11
and §335.1 of this title (relating to Definitions) except:
(1) Closure--Includes the activities under §335.8
of this title (relating to Closure and Remediation) and applicable
closure requirements of 40 CFR Parts 264 and 265.
(2) Closure plan--Includes the removal and decontamination
plan for release as set out in §335.705 of this title (relating
to Removal and Decontamination Plan for Release).
(c) Owners and operators of a reclamation facility
or an intermediate facility required by 40 CFR §261.4(a)(24)
to provide financial assurance, shall establish and maintain financial
assurance for removal and decontamination and corrective action as
a condition of the exclusion under 40 CFR §261.4(a)(24) and comply
with Chapter 37, Subchapters A and B of this title (relating to General
Financial Assurance Requirements; and Financial Assurance Requirements
for Closure, Post Closure, and Corrective Action) except:
(1) an owner or operator must submit an acceptable
originally signed mechanism to the executive director prior to the
management of hazardous secondary materials under the exclusion in
40 CFR §261.4(a)(24);
(2) in addition to the reasons to draw specified in §37.101
of this title (relating to Drawing on the Financial Assurance Mechanisms),
the executive director may draw on the financial assurance mechanism(s)
following a determination by the executive director that the hazardous
secondary materials do not meet the conditions of the exclusion under
40 CFR §261.4(a)(24).
(d) Owners or operators of a reclamation facility or
intermediate facility required by 40 CFR §261.4(a)(24) to provide
financial assurance must comply with Chapter 37, Subchapter C of this
title (relating to Financial Assurance Mechanisms for Closure, Post
Closure, and Corrective Action), by establishing financial assurance
for removal and decontamination and corrective action using any of
the following mechanisms as specified in Chapter 37, Subchapter C
of this title:
(1) Trust fund (fully funded), except reimbursements
to the owner or operator as specified under §37.201(j) of this
title (relating to Trust Fund) may only be made if the owner or operator
begins final closure under the applicable requirements of 40 CFR Part
264 or 265;
(2) Surety bond guaranteeing payment, except:
(A) the bond must guarantee that the owner or operator
will fund the standby trust fund in an amount equal to the penal sum
of the bond before the loss of the exclusion under 40 CFR §261.4(a)(24)
rather than the criteria set out in §37.211(d) of this title
(relating to Surety Bond Guaranteeing Payment); and
(B) the alternate financial assurance to be provided
by the Principal must meet the requirements specified in this section;
(3) Irrevocable standby letter of credit, except:
(A) the executive director may draw pursuant to subsection
(c)(2) of this section in addition to §37.231 of this title (relating
to Irrevocable Standby Letter of Credit); and
(B) alternate financial assurance must meet the requirements
specified in this section;
(4) Financial test, except:
(A) the financial assurance amounts required by this
section, for hazardous secondary materials must be included as an
additional environmental obligation when determining eligibility for
the financial test in accordance with §37.251 of this title (relating
to Financial Test); and
(B) alternate financial assurance must meet the requirements
of this section;
(5) Corporate guarantee except:
(A) the terms of the guarantee specified in §37.261(e)(1)
of this title (relating to Corporate Guarantee), shall provide that
following a determination by the executive director that the hazardous
secondary materials at the owner or operator's facility covered by
this guarantee do not meet the requirements of the exclusion under
40 CFR §261.4(a)(24) the guarantor will dispose of any hazardous
secondary material as hazardous waste and close the facility in accordance
with the applicable closure requirements of 40 CFR Part 264 or 265,
or establish a trust fund as specified in this section, in the name
of the owner or operator in the amount of the current cost estimate;
and
(B) the terms of the guarantee requiring alternate
financial assurance in §37.261(e)(3) of this title must meet
the requirements of this section.
(e) Owners or operators of a reclamation facility or
intermediate facility required by 40 CFR §261.4(a)(24) to provide
financial assurance for removal and decontamination and corrective
action shall comply with the wording requirements of Chapter 37, Subchapter
D of this title (relating to Wording of the Mechanisms for Closure,
Post Closure and Corrective Action) for the mechanisms indicated in
subsection (d) of this section except:
(1) the phrases in the Payment Bond under §37.311
of this title (relating to Payment Bond) shall be revised by:
(A) replacing the following language identified here
by quotation marks "Now, therefore, the conditions of the obligation
are such that if the Principal shall faithfully, before the beginning
of final closure of, or corrective action at, each facility identified
above, fund into the standby trust fund the amount(s) identified above
for the facility," with the following language identified here by
quotation marks "Now, therefore, the conditions of the obligation
are such that if the Principal shall faithfully, before the beginning
of final closure of, or corrective action at, each facility identified
above, fund into the standby trust fund the amount(s) identified above
for the facility; or, if the Principal shall satisfy all the requirements
for exclusion of hazardous secondary materials from classification
as solid waste under 40 CFR §261.4(a)(24) and be released from
the financial assurance requirements by the executive director"; and
(B) replacing the following language identified here
by quotation marks "Or, if the Principal shall provide alternate financial
assurance, as specified in 30 Texas Administrative Code, Chapter 37
(relating to Financial Assurance)" with the following language set
off here by quotation marks "Or, if the Principal shall provide alternate
financial assurance, as specified in 30 Texas Administrative Code, §335.703
(relating to Financial Assurance Requirements)"; and
(C) replacing the certification statement at the end
of the Payment Bond with the following statement identified by quotation
marks "The persons whose signatures appear below hereby certify that
they are authorized to execute this surety bond on behalf of the Principal
and Surety(ies) and that the wording of this surety bond is identical
to the wording specified in 30 Texas Administrative Code §37.311
(relating to Payment Bond), as modified by 30 Texas Administrative
Code §335.703 (relating to Financial Assurance Requirements),
as such regulations were constituted on the date the bond was executed.";
(2) The Chief Financial Officer's letter associated
with the financial test specified in §37.351 of this title (relating
to Financial Test), shall include the environmental obligations associated
with the exclusion in paragraph 5(f) of the Chief Financial Officer's
Letter in Figure: 30 TAC §37.351;
(3) The wording of the Corporate Guarantee required
by §37.361 of this title (relating to Corporate Guarantee) shall
be revised by:
(A) replacing Recital number 4 with "For value received
from (owner or operator) (describe consideration and dollar amount),
guarantor guarantees to the TCEQ that in the event of a determination
by the executive director that the hazardous secondary materials at
the owner or operator's facility covered by this guarantee do not
meet the conditions of the exclusion under 40 CFR §261.4(a)(24),
the guarantor will dispose of any hazardous secondary material as
hazardous waste, and close the facility in accordance with the applicable
closure requirements of 40 CFR Part 264 or 265, or establish a trust
fund as specified in 30 Texas Administrative Code §335.703 (relating
to Financial Assurance Requirements) in the name of the (owner or
operator) in the amount of the current cost estimate";
Cont'd... |
