Part 264 Standards for Owners and Operators of Hazardous Waste Treatment Storage and Disposal Facilities
(a)The purpose of this part is to establish minimum standards which define the acceptable management of hazardous waste.
(b)The standards in this part apply to owners and operators of all facilities which treat, store, or dispose of hazardous waste, except as specifically provided otherwise in this part or Part 261 of these regulations.
(c)The requirements of this part apply to a person disposing of hazardous waste by means of ocean disposal subject to permit issued under the Marine Protection, Research, and Sanctuary Act, only to the extent they are included in a permit by rule granted to such a person under §122.60(a) of these regulations.
(d)The underground injection of hazardous waste is banned in the State of Delaware.
(e)The requirements of this part apply to the owner or operator of POTW which treats, stores, or disposes of hazardous waste only to the extent they are included in a permit by rule granted to such a person under Part 122.60(c) of these regulations.
(f)[Reserved]
(g)The requirements of this part do not apply to:
(1)The owner or operator of a facility permitted, licensed, or registered by a state to manage municipal or industrial solid waste, if the only hazardous waste the facility treats, stores, or disposes of is excluded from regulation under this part by §261.5 of these regulations;
(2)The owner or operator of a facility managing recyclable materials described in §261.6(a)(2), (3), and (4) of these regulations (except to the extent they are referred to in Part 279 or Subparts C, F, G or H of Part 266 of these regulations).
(3)A generator accumulating waste on-site in compliance with §262.34 of these regulations.
(4)A farmer disposing of waste pesticides from his own use in compliance with §262.70 of these regulations;
(5)The owner or operator of a totally enclosed treatment facility as defined in §260.10.
(6) The owner or operator of an elementary neutralization unit or a wastewater treatment unit as defined in §260.10 of these regulations, provided that if the owner or operator is diluting hazardous ignitable (D001) wastes (other than the D001 High TOC Subcategory defined in §268.40 of these regulations, Table Treatment Standards for Hazardous Wastes), or reactive (D003) waste, to remove the characteristic before land disposal, the owner/operator must comply with the requirements set out in §264.17(b).
(7)To a person who treats, stores, or disposes of hazardous waste in a state which is authorized under Subpart A or B of 40 CFR Part 271 if the state has not been authorized to carry out the requirements and prohibitions applicable to the treatment, storage, or disposal of hazardous waste at his facility which are imposed pursuant to the Hazardous and Solid Waste Amendments of 1984. The requirements and prohibitions that are applicable until a state receives authorization to carry them out include all Federal program requirements identified in 40 CFR §271.1(j).
(8) (i)Except as provided in paragraph (g)(8)(ii) of this section, a person engaged in treatment or containment activities during immediate response to any of the following situations:
(A)A discharge of hazardous waste;
(B)An imminent and substantial threat of a discharge of hazardous waste;
(C)A discharge of a material which, when discharged, becomes a hazardous waste.
(D)An immediate threat to human health, public safety, property, or the environment, from the known or suspected presence of military munitions, other explosive material, or an explosive device, as determined by an explosive or munitions emergency response specialist as defined in §260.10.
(ii)An owner or operator of a facility otherwise regulated by this part must comply with all applicable requirements of Subparts C and D.
(iii)Any person who is covered by paragraph (g)(8)(i) of this section and who continues or initiates hazardous waste treatment or containment activities after the immediate response is over is subject to all applicable requirements of this part and Parts 122 - 124 of these regulations for those activities.
(iv)In the case of an explosives or munitions emergency response, if a Federal, State, Tribal or local official acting within the scope of his or her official responsibilities, or an explosives or munitions emergency response specialist, determines that immediate removal of the material or waste is necessary
to protect human health or the environment, that official or specialist may authorize the removal of the material or waste by transporters who do not have EPA identification numbers and without the preparation of a manifest. In the case of emergencies involving military munitions, the responding military emergency response specialist's organizational unit must retain records for three years identifying the dates of the response, the responsible persons responding, the type and description of material addressed, and its disposition.
(9)A transporter storing manifested shipments of hazardous waste in containers meeting the requirements of §262.30 at a transfer facility for a period of ten days or less, except as otherwise specified in §263.12.
(10)The addition of absorbent material to waste in a container (as defined in §260.10 of these regulations) or the addition of waste to absorbent material in a container, provided that these actions occur at the time waste is first placed in the container; and §§264.17(b), 264.171, and 264.172 are complied with.
(11)Universal waste handlers and universal waste transporters (as defined in 260.10) handling the wastes listed below. These handlers are subject to regulation under Part 273, when handling the below listed universal wastes.
(i)Batteries as described in §273.2;
(ii)Pesticides as described in §273.3 of these regulations;
(iii) Mercury-containing equipment as described in §273.4 of these regulations; and
(iv) Lamps as described in §273.5 of these regulations.
(h) The requirements of this part apply to owners or operators of all facilities which treat, store, or dispose of hazardous wastes referred to in Part 268.
(i) Section 266.205 of these regulations identifies when the requirements of this part apply to the storage of military munitions classified as solid waste under §266.202 of these regulations. The treatment and disposal of hazardous waste military munitions are subject to the applicable permitting, procedural, and technical standards in Parts 260 through 268 and 122.
(j) The requirements of Subparts B, C, and D of this part and §264.101 do not apply to remediation waste management sites. (However, some remediation waste management sites may be a part of a facility that is subject to a traditional hazardous waste permit because the facility is also treating, storing or disposing of hazardous wastes that are not remediation wastes. In these cases, Subparts B, C, and D of this part, and §264.101 do apply to the facility subject to the traditional hazardous waste permit.) Instead of the requirements of Subparts B, C, and D of this part, owners or operators of remediation waste management sites must:
(1) Obtain an EPA identification number by applying to the Secretary using EPA Form 8700-12;
(2) Obtain a detailed chemical and physical analysis of a representative sample of the hazardous remediation wastes to be managed at the site. At a minimum, the analysis must contain all of the information which must be known to treat, store or dispose of the waste according to this part and Part 268 of these regulations, and must be kept accurate and up to date;
(3) Prevent people who are unaware of the danger from entering, and minimize the possibility for unauthorized people or livestock to enter onto the active portion of the remediation waste management site, unless the owner or operator can demonstrate to the Secretary that:
(i) Physical contact with the waste, structures, or equipment within the active portion of the remediation waste management site will not injure people or livestock who may enter the active portion of the remediation waste management site; and
(ii) Disturbance of the waste or equipment by people or livestock who enter onto the active portion of the remediation waste management site, will not cause a violation of the requirements of this part;
(4) Inspect the remediation waste management site for malfunctions, deterioration, operator errors, and discharges that may be causing, or may lead to, a release of hazardous waste constituents to the environment, or a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment, and must remedy the problem before it leads to a human health or environmental hazard. Where a hazard is imminent or has already occurred, the owner/ operator must take remedial action immediately;
(5) Provide personnel with classroom or on-the-job training on how to perform their duties in a way that ensures the remediation waste management site complies with the requirements of this part, and on how to respond effectively to emergencies;
(6) Take precautions to prevent accidental ignition or reaction of ignitable or reactive waste, and prevent threats to human health and the environment from ignitable, reactive and incompatible waste;
(7) For remediation waste management sites subject to regulation under Subparts I through O and Subpart X of this part, the owner/operator must design, construct, operate, and maintain a unit within a 100-year floodplain to prevent washout of any hazardous waste by a 100-year flood, unless the owner/operator can meet the demonstration of §264.18(b);
(8) Not place any non-containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave;
(9) Develop and maintain a construction quality assurance program for all surface impoundments, waste piles and landfill units that are required to comply with §§ 264.221(c) and (d), 264.251(c) and (d), and 264.301(c) and (d) at the remediation waste management site, according to the requirements of §264.19;
(10) Develop and maintain procedures to prevent accidents and a contingency and emergency plan to control accidents that occur. These procedures must address proper design, construction, maintenance, and operation of remediation waste management units at the site. The goal of the plan must be to minimize the possibility of, and the hazards from a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water that could threaten human health or the environment. The plan must explain specifically how to treat, store and dispose of the hazardous remediation waste in question, and must be implemented immediately whenever a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment;
(11) Designate at least one employee, either on the facility premises or on call (that is, available to respond to an emergency by reaching the facility quickly), to coordinate all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan;
(12) Develop, maintain and implement a plan to meet the requirements in paragraphs (j)(2) through (j)(6) and (j)(9) through (j)(10) of this section; and
(13) Maintain records documenting compliance with paragraphs (j)(1) through (j)(12) of this section.
(Amended November 21, 1985; May 8, 1986; August 29, 1988; August 10, 1990, August 1, 1995, July 23, 1996, August 21, 1997, January 1, 1999, June 2, 2000, August 21, 2006)
Section 264.3 Relationship to interim status standards.
A facility owner or operator who has fully complied with the requirements for interim status - as defined in 7 Del.C., §6307(g) and regulations under §122.70 of these regulations - must comply with the regulations specified in Part 265 of these regulations in lieu of the regulations in this part, until final administrative disposition of his permit application is made, except as provided under Part 264, Subpart S.
[Comment: As stated in 7 Del.C., §6307(g), after the effective date of regulations under that §, i.e., Parts 122 and 124 of these regulations, the treatment, storage, or disposal of hazardous waste is prohibited except in accordance with a permit. Seven Del.C., §6307(g) provides for the continued operation of an existing facility which meets certain conditions until final administrative disposition of the owner's or operator's permit application is made.]
(Amended August 1, 1995, January 1, 1999)
Section 264.4 Imminent hazard action.
Notwithstanding any other provisions of these regulations, enforcement actions may be brought pursuant to 7 Del.C., §6308.
(a)The regulations in this subpart apply to owners and operators of all hazardous waste facilities, except as provided in §264.1 and in paragraph (b) of this section.
(b)§264.18(b) is applicable only to facilities subject to regulation under Subparts I through O of this part and Subpart X of this part.
(a) Every facility owner or operator must apply to the Secretary for an EPA identification number in accordance with the State notification procedures.
(b) A facility must submit a subsequent State of Delaware Notification of Regulated Waste Activity Form (8700-12) whenever there is a change in name, mailing address, contact person, contact address, telephone number, ownership, type of regulated waste activity, or changes in the description of regulated wastes managed or permanently ceases the regulated waste activity. This subsequent notification must be submitted to the Secretary no less than 10 days prior to implementation of the change(s).
(a) (1) The owner or operator of a facility that has arranged to receive hazardous waste from a foreign source must notify the Regional Administrator in writing at least four weeks in advance of the date the waste is expected to arrive at the facility. Notice of subsequent shipments of the same waste from the same foreign source is not required.
(2) The owner or operator of a recovery facility that has arranged to receive hazardous waste subject to Part 262, Subpart H must provide a copy of the tracking document bearing all required signatures to the notifier, to the Office of Enforcement and Compliance Assurance, Office of Compliance, Enforcement Planning, Targeting and Data Division (2222A), Environmental Protection Agency, 401 M St., SW, Washington, DC 20460; and to the competent authorities of all other concerned countries within three working days of receipt of the shipment. The original of the signed tracking document must be maintained at the facility for at least three years.
(3) A copy of the signed tracking document must also be submitted to the DNREC Secretary.
(b) The owner or operator of a facility that receives hazardous waste from an off-site source (except where the owner or operator is also the generator) must inform the generator in writing that he has the appropriate permit(s) for, and will accept, the waste the generator is shipping. The owner or operator must keep a copy of this written notice as part of the operating record.
(c) Before transferring ownership or operation of a facility during its operating life, or of a disposal facility during the post-closure care period, the owner or operator must notify the new owner or operator in writing of the requirements of this part and Part 122 of these regulations.
[Comment: An owner's or operator's failure to notify the new owner or operator of the requirements of this part in no way relieves the new owner or operator of his obligation to comply with all applicable requirements.]
(Amended January 1, 1999)
(a) (1) Before an owner or operator treats, stores, or disposes of any hazardous wastes, he must obtain a detailed chemical and physical analysis of a representative sample of the wastes. At a minimum, the analysis must contain all the information which must be known to treat, store, or dispose of the waste in accordance with this part and Part 268 of these regulations.
(2) The analysis may include data developed under Part 261 of these regulations, and existing published or documented data on the hazardous waste or on hazardous waste generated from similar processes.
[Comment: For example, the facility's records of analyses performed on the waste before the effective date of these regulations, or studies conducted on hazardous waste generated from process similar to that which generated the waste to be managed at the facility, may be included in the data base required to comply with paragraph (a)(1) of this section. The owner or operator of an off-site facility may arrange for the generator of the hazardous waste to supply part of the information required by paragraph (a)(1) of this section except as otherwise specified in §268.7(b) and (c) of these regulations. If the generator does not supply the information, and the owner or operator chooses to accept a hazardous waste, the owner or operator is responsible for obtaining the information required to comply with this section.]
(3) The analysis must be repeated as necessary to ensure that it is accurate and up to date. At a minimum, the analysis must be repeated:
(i) When the owner or operator is notified, or has reason to believe, that the process or operation generating the hazardous waste has changed; and
(ii) For off-site facilities, when the results of the inspection required in paragraph (a)(4) of this section indicate that the hazardous waste received at the facility does not match the waste designated on the accompanying manifest or shipping paper.
(4) The owner or operator of an off-site facility must inspect and, if necessary, analyze each hazardous waste movement received at the facility to determine whether it matches the identity of the waste specified on the accompanying manifest or shipping paper.
(b) The owner or operator must develop and follow a written waste analysis plan which describes the procedures which he will carry out to comply with paragraph (a) of this section. He must keep this plan at the facility. At a minimum, the plan must specify:
(1) The parameters for which each hazardous waste will be analyzed and the rationale for the selection of these parameters (i.e., how analysis for these parameters will provide sufficient information on the waste's properties to comply with paragraph (a) of this section);
(2) The test methods which will be used to test for these parameters;
(3) The sampling method which will be used to obtain a representative sample of the waste to be analyzed. A representative sample may be obtained using either:
(i) One of the sampling methods described in Appendix I of Part 261 of these regulations; or
(ii) An equivalent sampling method.
[Comment: See Part 260 Subpart C of these regulations for related discussion.]
(4) The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up-to-date; and
(5) For off-site facilities, the waste analyses that hazardous waste generators have agreed to supply.
(6) Where applicable, the methods that will be used to meet the additional waste analysis requirements for specific waste management methods as specified in §§264.17, 264.314, 264.341, 264.1034(d), 264.1063(d), 264.1083, and 268.7 of these regulations.
(7) For surface impoundments exempted from land disposal restrictions under §268.4(a), the procedures and schedules for:
(i) The sampling of impoundment contents;
(ii) The analysis of test data; and,
(iii) The annual removal of residues which are not delisted under §260.22 of these regulations or which exhibit a characteristic of hazardous waste and either:
(A) Do not meet applicable treatment standards of Part 268, Subpart D; or
(B) Where no treatment standards have been established: (1) Such residues are prohibited from land disposal under §268.32 or 7 Del.C., Chapter 63; or
(2) Such residues are prohibited from land disposal under §268.33(f).
(8) For owners and operators seeking an exemption to their air emission standards of Subpart CC in accordance with §264.1082.
(i) If direct measurement is used for the waste determination, the procedures and schedules for waste sampling and analysis, and the results of the analysis of test data to verify the exemption.
(ii) If knowledge of the waste is used for the waste determination, any information prepared by the facility owner or operator or by the generator of the hazardous waste, if the waste is received from off-site, that is used as the basis for knowledge of the waste.
(c) For off-site facilities, the waste analysis plan required in paragraph (b) of this section must also specify the procedures which will be used to inspect and, if necessary, analyze each movement of hazardous waste received at the facility to ensure that it matches the identity of the waste designated on the accompanying manifest or shipping paper. At a minimum, the plan must describe:
(1) The procedures which will be used to determine the identity of each movement of waste managed at the facility; and
(2) The sampling method which will be used to obtain a representative sample of the waste to be identified, if the identification method includes sampling.
[Comment: Part 122, Subpart B, of these regulations requires that the waste analysis plan be submitted with Part B of the permit application.]
(3) The procedures that the owner or operator of an off-site landfill receiving containerized hazardous waste will use to determine whether a hazardous waste generator or treater has added a biodegradable sorbent to the waste in the container.
(Amended June 19, 1992, August 1, 1995, January 1, 1999)
(a) The owner or operator must prevent the unknowing entry, and minimize the possibility for the unauthorized entry, of persons or livestock onto the active portion of this facility, unless he can demonstrate to the Secretary that:
(1) Physical contact with the waste, structures, or equipment within the active portion of the facility will not injure unknowing or unauthorized persons or livestock which may enter the active portion of a facility; and
(2) Disturbance of the waste or equipment, by the unknowing or unauthorized entry of persons or livestock onto the active portion of a facility, will not cause a violation of the requirements of this part.
[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]
(b) Unless the owner or operator has made a successful demonstration under paragraphs (a)(1) and (a)(2) of this section, facility must have:
(1) A 24-hour surveillance system (e.g., television monitoring or surveillance by guards or facility personnel) which continuously monitors and controls entry onto the active portion of the facility; or
(2) (i) An artificial or natural barrier (e.g., a fence in good repair or a fence combined with a cliff), which completely surrounds the active portion of the facility; and
(ii) A means to control entry, at all times, through the gates or other entrances to the active portion of the facility (e.g., an attendant, television monitors, locked entrance, or controlled roadway access to the facility).
[Comment: The requirements of paragraph (b) of this section are satisfied if the facility or plant within which the active portion is located itself has a surveillance system, or a barrier and a means to control entry, which complies with the requirements of paragraph (b)(1) or (b)(2) of this section.]
(c) Unless the owner or operator has made a successful demonstration under paragraphs (a)(1) and (a)(2) of this section, a sign with legend, "Danger - Unauthorized Personnel Keep Out", must be posted at each entrance to the active portion of a facility, and at other locations, in sufficient numbers to be seen from any approach to this active portion. The legend must be written in English and in any other language predominant in the area surrounding the facility (e.g., facilities in counties bordering the Canadian province of Quebec must post signs in French; facilities in counties bordering Mexico must post signs in Spanish), and must be legible from a distance of at least 25 feet. Existing signs with a legend other than "Danger - Unauthorized Personnel Keep Out" may be used if the legend on the sign indicates that only authorized personnel are allowed to enter the active portion, and that entry onto the active portion can be dangerous.
[Comment: See §264.117(b) for discussion of security requirements at disposal facilities during the post-closure care period.]
(a) The owner or operator must inspect his facility for malfunctions and deterioration, operator errors, and discharges which may be causing - or may lead to - (1) release of hazardous waste constituents to the environment or (2) a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment.
(b) (1) The owner or operator must develop and follow a written schedule for inspecting monitoring equipment, safety, and emergency equipment, security devices, and operating and structural equipment (such as dikes and sump pumps) that are important to preventing, detecting, or responding to environmental or human health hazards.
(2) He must keep this schedule at the facility.
(3) The schedule must identify the types of problems (e.g., malfunctions or deterioration) which are to be looked for during the inspection (e.g., inoperative sump pump, leaking fitting, eroding dike, etc.).
(4) The frequency of inspection may vary for the items on the schedule. However, the frequency should be based on the rate of deterioration of the equipment and the probability of an environmental or human health incident if the deterioration, malfunction, or any operator error goes undetected between inspections. Areas subject to spills, such as loading and unloading areas, must be inspected daily when in use. At a minimum, the inspection schedule must include the items and frequencies called for in §§ 264.174, 264.193, 264.195, 264.226, 264.254, 264.278, 264.303, 264.347, 264.602, 264.1033, 264.1052, 264.1053, 264.1058, and 264.1083 through 264.1089 of this part, where applicable.
[Comment: Part 122, Subpart B, of these regulations requires the inspection schedule to be submitted with Part B of the permit application. DNREC will evaluate the schedule along with the rest of the application to ensure that it adequately protects human health and the environment. As part of this review, DNREC may modify or amend the schedule as may be necessary.]
(c) The owner or operator must remedy any deterioration or malfunction of equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately.
(d) The owner or operator must record inspections in an inspection log or summary. He must keep these records for at least three years from the date of inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions.
(Amended August 29, 1988; August 10, 1990, August 1, 1995, January 1, 1999, August 23, 1999)
(a) (1) Facility personnel must successfully complete a program of classroom instruction or on-the-job training that teaches them to perform their duties in a way that ensures the facility's compliance with the requirements of this part. The owner or operator must ensure that this program includes all the elements described in the document required under paragraph (d)(3) of this section.
[Comment: Part 122, Subpart B, of these regulations requires that owners and operators submit with Part B of the permit application, an outline of the training program used (or to be used) at the facility and a brief description of how the training program is designed to meet actual job tasks.]
(2) This program must be directed by a person trained in hazardous waste management procedures, and must include instruction which teaches facility personnel hazardous waste management procedures (including contingency plan implementation) relevant to the positions in which they are employed.
(3) At a minimum, the training program must be designed to ensure that facility personnel are able to respond effectively to emergency procedures, emergency equipment, and emergency systems, including where applicable:
(i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment;
(ii) Key parameters for automatic waste feed cut-off systems;
(iii) Communications or alarm systems;
(iv) Response to fires or explosions;
(v) Response to groundwater contamination incidents; and
(vi) Shutdown of operations.
(b) Facility personnel must successfully complete the program required in paragraph (a) of this section within six months after the effective date of these regulations or six months after the date of their employment or assignment to a facility, or to a new position at a facility, whichever is later. Employees hired after the effective date of these regulations must not work in unsupervised positions until they have completed the training requirements of paragraph (a) of this section.
(c) Facility personnel must take part in an annual review of the initial training required in paragraph (a) of this section.
(d) The owner or operator must maintain the following documents and records at the facility:
(1) The job title for each position at the facility related to hazardous waste management, and the name of the employee filling each job;
(2) A written job description for each position listed under paragraph (d)(1) of this section. This description may be consistent in its degree of specificity with descriptions for other similar positions in the same company location or bargaining unit, but must include the requisite skill, education, or other qualifications, and duties of employees assigned to each position;
(3) A written description of the type and amount of both introductory and continuing training that will be given to each person filling a position listed under paragraph (d)(1) of this section;
(4) Records that document that the training or job experience required under paragraphs (a), (b), and (c) of this section has been given to, and completed by, facility personnel.
(e) Training records on current personnel must be kept until closure of the facility; training records on former employees must be kept for at least three years from the date the employee last worked at the facility. Personnel training records may accompany personnel transferred within the same company.
(a) The owner or operator must take precautions to prevent accidental ignition or reaction of ignitable or reactive waste. This waste must be separated and protected from sources of ignition or reaction including but not limited to: open flames, smoking, cutting and welding, hot surfaces, frictional heat, sparks (static, electrical, or mechanical), spontaneous ignition (e.g., from heat-producing chemical reactions), and radiant heat. While ignitable or reactive waste is being handled, the owner or operator must confine smoking and open flame to specially designated locations. "No Smoking" signs must be conspicuously placed wherever there is a hazard from ignitable or reactive waste.
(b) Where specifically required by other sections of the part, the owner or operator of a facility that treats, stores, or disposes ignitable or reactive waste, or mixes incompatible waste or incompatible wastes and other materials, must take precautions to prevent reactions which:
(1) Generate extreme heat or pressure, fire or explosions, or violent reactions;
(2) Produce uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment;
(3) Produce uncontrolled flammable fumes or gases in sufficient quantities to pose a risk of fire or explosions;
(4) Damage the structural integrity of the device or facility;
(5) Through other like means threaten human health or the environment.
(c) When required to comply with paragraph (a) or (b) of this section, the owner or operator must document that compliance. This documentation may be based on references to published scientific or engineering literature, data from trial tests (e.g., bench scale or pilot scale tests), waste analyses (as specified in §264.13), or the result of the treatment of similar wastes by similar treatment processes and under similar operating conditions.
(a) Seismic considerations.
(1) Portions of new facilities where treatment, storage, or disposal of hazardous waste will be conducted must not be located within 61 meters (200 feet) of a fault which has had displacement in Holocene time.
(2) As used in paragraph (a)(1) of this section:
(i) Fault means a fracture along which rocks on one side have been displaced with respect to those on the other side.
(ii) Displacement means the relative movement of any two sides of a fault measured in any direction.
(iii) Holocene means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene to the present.
[Comment: Procedures for demonstrating compliance with this standard in Part B of the permit application are specified in §122.14(b)(11). Facilities which are located in political jurisdictions other than those listed in Appendix VI of this part, are assumed to be in compliance with this requirement.]
(b) Floodplains.
(1) A facility located in a 100-year floodplain must be designed, constructed, operated, and maintained to prevent washout of any hazardous waste by a 100-year flood unless the owner or operator can demonstrate to the Secretary's satisfaction that:
(i) Procedures are in effect which will cause the waste to be removed safely, before flood waters can reach the facility, to a location where the wastes will not be vulnerable to flood waters; or
(ii) For existing surface impoundments, waste piles, land treatment units, landfills, and miscellaneous units, no adverse effects on human health or the environment will result if washout occurs, considering:
(A) The volume and physical and chemical characteristics of the waste in the facility;
(B) The concentration of hazardous constituents that would potentially affect surface waters as a result of washout;
(C) The impact of such concentrations on the current or potential uses of and water quality standards established for the affected surface waters; and
(D) The impact of hazardous constituents on the sediments of affected surface waters or the soils of the 100-year floodplain that could result from washout.
[Comment: The location where wastes are moved must be a facility which is either permitted by DNREC under Part 122 of these regulations, authorized to manage hazardous waste by a State with a hazardous waste management program authorized under 40 CFR, Part 123, or in interim status under Parts 122 and 265 of these regulations.]
(2) As used in paragraph (b)(1) of this section:
(i) 100-year floodplain means any land area which is subject to a one percent or greater chance of flooding in any given year from any source.
(ii) Washout means the movement of hazardous waste from the active portion of the facility as a result of flooding.
(iii) 100-year flood means a flood that has a one percent chance of being equaled or exceeded in any given year.
[Comment: Requirements pertaining to other laws which affect the location and permitting of facilities are found in §122.12 of these regulations. For details relative to these laws, see DNREC's manual for SEA (special environmental area) requirements for hazardous waste facility permits. Though DNREC is responsible for complying with these requirements, applicants are advised to consider them in planning the location of a facility to help prevent subsequent project delays. Also, refer to the Delaware Regulations Governing the Location of Hazardous Waste Storage, Treatment and Disposal Facilities for further requirements which affect the location and permitting of facilities. Applicants are responsible for complying with these requirements.]
(c) Salt dome formations, salt bed formations, underground mines and caves. The placement of any non-containerized or bulk liquid hazardous waste in any salt dome formation, salt bed formation, underground mine or cave is prohibited.
[Note: The definition of a wetland can be found in the DNREC Wetland Regulations of 1976 which were adopted under 7 Del.C., §6607.]
(Amended May 8, 1986; August 29, 1988; August 10, 1990, August 23, 1999)
(a) CQA program.
(1) A construction quality assurance (CQA) program is required for all surface impoundment, waste pile, and landfill units that are required to comply with §§ 264.221(c) and (d), 264.251(c) and (d), and 264.301(c) and (d). The program must ensure that the constructed unit meets or exceeds all design criteria and specifications in the permit. The program must be developed and implemented under the direction of a CQA officer who is a registered professional engineer.
(2) The CQA program must address the following physical components, where applicable:
(i) Foundations;
(ii) Dikes;
(iii) Low-permeability soil liners;
(iv) Geomembranes (flexible membrane liners);
(v) Leachate collection and removal systems and leak detection systems; and
(vi) Final cover systems.
(b) Written CQA plan. The owner or operator of units subject to the CQA program under paragraph (a) of this section must develop and implement a written CQA plan. The plan must identify steps that will be used to monitor and document the quality of materials and the condition and manner of their installation. The CQA plan must include:
(1) Identification of applicable units, and a description of how they will be constructed.
(2) Identification of key personnel in the development and implementation of the CQA plan, and CQA officer qualifications.
(3) A description of inspection and sampling activities for all unit components identified in paragraph (a)(2) of this section, including observations and tests that will be used before, during, and after construction to ensure that the construction materials and the installed unit components meet the design specifications. The description must cover: Sampling size and locations; frequency of testing; data evaluation procedures; acceptance and rejection criteria for construction materials; plans for implementing corrective measures; and data or other information to be recorded and retained in the operating record under §264.73.
(c) Contents of program.
(1) The CQA program must include observations, inspections, tests, and measurements sufficient to ensure:
(i) Structural stability and integrity of all components of the unit identified in paragraph (a)(2) of this section;
(ii) Proper construction of all components of the liners, leachate collection and removal system, leak detection system, and final cover system, according to permit specifications and good engineering practices, and proper installation of all components (e.g., pipes) according to design specifications;
(iii) Conformity of all materials used with design and other material specifications under §§ 264.221, 264.251, and 264.301.
(2) The CQA program shall include test fills for compacted soil liners, using the same compaction methods as in the full scale unit, to ensure that the liners are constructed to meet the hydraulic conductivity requirements of §§ 264.221(c)(1)(i)(B), 264.251(c)(1)(i)(B), and 264.301(c)(1)(i)(B) in the field. Compliance with the hydraulic conductivity requirements must be verified by using in-situ testing on the constructed test fill. The Secretary may accept an alternative demonstration, in lieu of a test fill, where data are sufficient to show that a constructed soil liner will meet the hydraulic conductivity requirements of §§ 264.221(c)(1)(i)(B), 264.251(c)(1)(i)(B), and 264.301(c)(1)(i)(B) in the field.
(d) Certification. Waste shall not be received in a unit subject to §264.19 until the owner or operator has submitted to the Secretary by certified mail or hand delivery a certification signed by the CQA officer that the approved CQA plan has been successfully carried out and that the unit meets the requirements of §§ 264.221(c) or (d), 264.251(c) or (d), or 264.301(c) or (d); and the procedure in §122.30(l)(2)(ii) of these
regulations has been completed. Documentation supporting the CQA officer's certification must be furnished to the Secretary upon request.
(Amended August 1, 1995, August 21, 1997)
Subpart C - Preparedness and Prevention
The regulations in this subpart apply to owners and operators of all hazardous waste facilities, except as §264.1 provides otherwise.
Section 264.31 Design and operation of facility.
Facilities must be designed, constructed, maintained, and operated to minimize the possibility of a fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water which could threaten human health or the environment.
Section 264.32 Required equipment.
All facilities must be equipped with the following, unless it can be demonstrated to the Secretary that none of the hazards posed by waste handled at the facility could require a particular kind of equipment specified below:
(a) An internal communications or alarm system capable of providing immediate emergency instruction (voice or signal) to facility personnel;
(b) A device, such as a telephone (immediately available at the scene of operations) or a hand-held two-way radio, capable of summoning emergency assistance from local police departments, fire departments, or State or local emergency response teams;
(c) Portable fire extinguishers, fire control equipment (including special extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill control equipment, and decontamination equipment; and
(d) Water at adequate volume and pressure to supply water hose streams, or foam producing equipment, or automatic sprinklers, or water spray systems.
[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]
Section 264.33 Testing and maintenance of equipment.
All facility communications or alarm systems, fire protection equipment, spill control equipment, and decontamination equipment, where required, must be tested and maintained as necessary to assure its proper operation in time of emergency.
(a) Whenever hazardous waste is being poured, mixed, spread, or otherwise handled, all personnel involved in the operation must have immediate access to an internal alarm or emergency communication device, either directly or through visual or voice contact with another employee, unless the Secretary has ruled that such a device is not required under §264.32.
(b) If there is ever just one employee on the premises while the facility is operating, he must have immediate access to a device, such as a telephone (immediately available at the scene of operation) or a hand-held two-way radio, capable of summoning external emergency assistance, unless the Secretary has ruled that such a device is not required under §264.32.
Section 264.35 Required aisle space.
The owner or operator must maintain aisle space to allow the unobstructed movement of personnel, fire protection equipment, spill control equipment, and decontamination equipment to any area of facility operation in an emergency, unless it can be demonstrated to the Secretary that aisle space is not needed for any of these purposes.
[Comment: Part 122, Subpart B, of these regulations requires that an owner or operator who wishes to make the demonstration referred to above must do so with Part B of the permit application.]
(a) The owner or operator must attempt to make the following arrangements, as appropriate for the type of waste handled at his facility and the potential need for the services of these organizations:
(1) Arrangements to familiarize police, fire departments, and emergency response teams with the layout of the facility, properties of hazardous waste handled at the facility and associated hazards, places where facility personnel would normally be working, entrances to and roads inside the facility, and possible evacuation routes;
(2) Where more than one police and fire department might respond to an emergency, agreements designating primary emergency authority to a specific police and a specific fire department, and agreements with any other to provide support to the primary emergency authority;
(3) Agreements with State emergency response teams, emergency response contractors, and equipment suppliers; and
(4) Arrangements to familiarize local hospitals with the properties of hazardous waste handled at the facility and the types of injuries or illnesses which could result from fires, explosions, or releases at the facility.
(b) Where State or local authorities decline to enter into such arrangements, the owner or operator must document the refusal in the operating record.
Subpart D - Contingency Plan and Emergency Procedures
The regulations in this subpart apply to owners and operators of all hazardous waste facilities, except as §264.1 provides otherwise.
Section 264.51 Purpose and implementation of contingency plan.
(a) Each owner or operator must have a contingency plan for his facility. The contingency plan must be designed to minimize hazards to human health or the environment from fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water.
(b) The provisions of the plan must be carried out immediately whenever there is a fire, explosion, or release of hazardous waste or hazardous waste constituents which could threaten human health or the environment.
(a) The contingency plan must describe the actions facility personnel must take to comply with §§264.51 and 264.56 in response to fires, explosions, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, or surface water at the facility.
(b) The plan must describe arrangements agreed to by local police departments, fire departments, hospitals, contractors, and State and local emergency services, pursuant to §264.37.
(c) The plan must list names, addresses, and telephone numbers (office and home) of all persons qualified to act as emergency coordinator (see §264.55), and this list must be kept up to date. Where more than one person is listed, one must be named as primary emergency coordinator and others must be listed in the order in which they will assume responsibility as alternates. For new facilities, this information must be provided to the Secretary at the time of certification, rather than at the time of permit application.
(d) The plan must include a list of all emergency equipment at the facility (such as fire extinguishing systems, spill control equipment, communications and alarm systems (internal and external), and decontamination equipment), where this equipment is required. This list must be kept up-to-date. In addition, the plan must include the location and a physical description of each item on the list, and a brief outline of its capabilities.
(e) The plan must include an evacuation plan for facility personnel where there is a possibility that evacuation could be necessary. This plan must describe signal(s) to be used to begin evacuation, evacuation routes, and alternate evacuation routes (in cases where the primary routes could be blocked by releases of hazardous waste or fires).
(Amended January 1, 1999)
Section 264.53 Copies of contingency plan.
A printed copy of the contingency plan and all revisions to the plan must be:
(a) Maintained at the facility and made available immediately upon request; and
(b) Submitted to all local police departments, fire departments, hospitals, and State and local emergency response teams that may be called upon to provide emergency services.
[Comment: The contingency plan must be submitted to the Secretary with Part B of the permit application under Part 122, Subparts A and B, of these regulations and, after modification or approval, will become a condition of any permit issued.]
(Amended July 11, 2002)
Section 264.54 Amendment of contingency plan.
The contingency plan must be reviewed, and immediately amended, if necessary, whenever:
(a) The facility permit is revised;
(b) The plan fails in an emergency;
(c) The facility changes - in its design, construction, operation, maintenance, or other circumstances - in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
(d) The list of emergency coordinators changes; or
(e) The list of emergency equipment changes
(Amended August 10, 1990)
Section 264.55 Emergency coordinator.
At all times, there must be at least one employee either on the facility premises or on call (i.e., available to respond to an emergency by reaching the facility within a short period of time) with the responsibility for coordinating all emergency response measures. This emergency coordinator must be thoroughly familiar with all aspects of the facility's contingency plan, all operations and activities at the facility, the location and characteristics of waste handled, the location of all records within the facility, and the facility layout. In addition, this person must have the authority to commit the resources needed to carry out the contingency plan.
[Comment: The emergency coordinator's responsibilities are more fully spelled out in §264.56. Applicable responsibilities for the emergency coordinator vary, depending on factors such as type and variety of waste(s) handled by the facility, and type and complexity of the facility.]
(a) Whenever there is an imminent or actual emergency situation, the emergency coordinator (or his designee when the emergency coordinator is on call) must immediately:
(1) Activate internal facility alarms or communication systems, where applicable, to notify all facility personnel; and
(2) Notify appropriate State or local agencies with designated response roles if their help is needed.
(b) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, and a real extent of any released materials. He may do this by observation or review of facility records or manifests, and if necessary, by chemical analysis.
(c) Concurrently, the emergency coordinator must assess possible hazards to human health or the environment that may result from the release, fire, or explosion. This assessment must consider both direct and indirect effects of the release, fire, or explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are generated, or the effects of any hazardous surface water run-off from water or chemical agents used to control fire and heat-induced explosions).
(d) If the emergency coordinator determines that the facility has had a release, fire, or explosion which would threaten human health, or the environment, outside the facility, he must report his findings as follows:
(1) If his assessment indicates that evacuation of local areas may be advisable, he must immediately notify appropriate local authorities. He must be available to help appropriate officials decide whether local areas should be evacuated; and
(2) He must immediately notify either the government official designated as the on-scene coordinator in the contingency plan or the National Response Center (using their 24-hour toll free number (800) 424-8802) and the Department of Natural Resources and Environmental Control (using the nos. (800) 662-8802 or (302) 739-9401). The report must include:
(i) Name and telephone number of reporter;
(ii) Name and address of facility;
(iii) Time and type of incident (e.g., release, fire);
(iv) Name and quantity of material(s) involved, to the extent known;
(v) The extent of injuries, if any; and
(vi) The possible hazards to human health, or the environment, outside the facility.
(e) During an emergency, the emergency coordinator must take all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the facility. These measures must include, where applicable, stopping processes and operations, collecting and containing release waste, and removing or isolating containers.
(f) If the facility stops operations in response to a fire, explosion, or release, the emergency coordinator must monitor for leaks, pressure build-up, gas generation, or ruptures in valves, pipes, or other equipment, wherever this is appropriate.
(g) Immediately after an emergency, the emergency coordinator must provide for treating,
storing, or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire, or explosion at the facility.
[Comment: Unless the owner or operator can demonstrate, in accordance with §261.3(c) or (d) of these regulations, that the recovered material is not a hazardous waste, the owner or operator becomes a generator of hazardous waste and must manage it in accordance with all applicable requirements of Parts 262, 263, and 264 of these regulations.]
(h) The emergency coordinator must ensure that, in the affected area(s) of the facility:
(1) No waste that may be incompatible with the released material is treated, stored, or disposed of until cleanup procedures are completed; and
(2) All emergency equipment listed in the contingency plan is cleaned and fit for its intended use before operations are resumed.
(i) The owner or operator must notify the Secretary, and appropriate State and local authorities, that the facility is in compliance with paragraph (h) of this section before operations are resumed in the affected area(s) of the facility.
(j) The owner or operator must note in the operating record the time, date, and details of any incident that requires implementing the contingency plan. Within 15 days after the incident, he must submit a written report on the incident to the Secretary. The report must include:
(1) Name, address, and telephone number of the owner or operator;
(2) Name, address, and telephone number of the facility;
(3) Date, time, and type of incident (e.g., fire, explosion);
(4) Name and quantity of material(s) involved;
(5) The extent of injuries, if any;
(6) An assessment of actual or potential hazards to human health or the environment, where this is applicable; and
(7) Estimated quantity and disposition of recovered material that resulted from the incident.
(a) The regulations in this subpart apply to owners and operators of both on-site and off-site facilities, except as §264.1 provides otherwise. Sections 264.71, 264.72, and 264.76 do not apply to owners and operators of on-site facilities that do not receive any hazardous waste from off-site sources, and to owners and operators of off-site facilities with respect to waste military munitions exempted from manifest requirements under §266.203(a). Section 264.73(b) only applies to permittees who treat, store, or dispose of hazardous wastes on-site where such wastes were generated.
(b) The revised Manifest form and procedures in DRGHW 260.10, 261.7, 264.70, 264.71. 264.72, and 264.76, shall not apply until September 5, 2006. The Manifest form and procedures in §260.10, 261.7, 264.70, 264.71. 264.72, and 264.76, contained in parts 260 to 265 shall be applicable until September 5, 2006.
(Amended May 8, 1986, January 1, 1999, August 21, 2006)
(a) (1) If a facility receives hazardous waste accompanied by a manifest, the owner or operator, or his/her agent, must sign and date the manifest as indicated in paragraph (a)(2) of this section to certify that the hazardous waste covered by the manifest was received, that the hazardous waste was received except as noted in the discrepancy space of the manifest, or that the hazardous waste was rejected as noted in the manifest discrepancy space.
(2) If a facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator or his agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in § 264.72(a)) on each copy of the manifest;
(iii) Immediately give the transporter at least one copy of the manifest;
(iv) Within 30 days of delivery, send a copy of the manifest to the generator; and
(v) Retain at the facility a copy of each manifest for at least three years from the date of delivery.
(3) If a facility receives hazardous waste imported from a foreign source, the receiving facility must mail a copy of the manifest to the following address within 30 days of delivery: International Compliance Assurance Division, OFA/ OECA (2254A), U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
(b) If a facility receives, from a rail or water (bulk shipment) transporter, hazardous waste which is accompanied by a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator's certification, and signatures), the owner or operator, or his agent, must:
(1) Sign and date each copy of the manifest or shipping paper (if the manifest has not been received) to certify that the hazardous waste covered by the manifest or shipping paper was received;
(2) Note any significant discrepancies (as defined in §264.72(a) in the manifest or shipping paper (if the manifest has not been received) on each copy of the manifest or shipping paper.
[Comment: The Department does not intend that the owner or operator of a facility whose procedures under §264.13(c) include waste analysis must perform that analysis before signing the manifest and giving it to the transporter. Section 264.72(b), however, requires reporting an unreconciled discrepancy discovered during later analysis.]
(3) Immediately give the rail or water (bulk shipment) transporter at least one copy of the manifest or shipping paper (if the manifest has not been received);
(4) Within 30 days after the delivery, send a copy of the signed and dated manifest or a signed and dated copy of the shipping paper (if the manifest has not been received within 30 days after delivery) to the generator; and
(5) Retain at the facility a copy of the manifest and shipping paper (if signed in lieu of the manifest at the time of delivery) for at least three years from the date of delivery.
(c) Whenever a shipment of hazardous waste is initiated from a facility, the owner or operator of that facility must comply with the requirements of Part 262 of these regulations.
[Comment: The provision of §262.34 are applicable to the on-site accumulation of hazardous wastes by generators. Therefore, the provisions of §262.34 only apply to owners or operators who are shipping hazardous waste which they generated at that facility.]
(d) (1) Within three working days of the receipt of a shipment subject to Part 262, Subpart H, the owner or operator of the facility must provide a copy of the tracking document bearing all required signatures to the notifier, to the Office of Enforcement and Compliance Assurance, Office of Compliance, Enforcement Planning, Targeting and Data Division (2222A), Environmental Protection Agency, 401 M St., SW., Washington, DC 20460, and to competent authorities of all other concerned countries. The original copy of the tracking document must be maintained at the facility for at least three years from the date of signature.
(2) A copy of the signed tracking document must also be submitted to the DNREC Secretary.
(e) A facility must determine whether the consignment state for a shipment regulates any additional wastes (beyond those regulated Federally) as hazardous wastes under its state hazardous waste program. Facilities must also determine whether the consignment state or generator state requires the facility to submit any copies of the manifest to these states.
(a) Manifest discrepancies are:
(1) Significant differences (as defined by paragraph (b) of this section) between the quantity or type of hazardous waste designated on the manifest or shipping paper, and the quantity and type of hazardous waste a facility actually receives;
(2) Rejected wastes, which may be a full or partial shipment of hazardous waste that the TSDF cannot accept; or
(3) Container residues, which are residues that exceed the quantity limits for ‘‘empty’’ containers set forth in §261.7(b) of these regulations.
(b) Significant differences in quantity are: For bulk waste, variations greater than 10 percent in weight; for batch waste, any variation in piece count, such as a discrepancy of one drum in a truckload. Significant differences in type are obvious differences which can be discovered by inspection or waste analysis, such as waste solvent substituted for waste acid, or toxic constituents not reported on the manifest or shipping paper.
(c) Upon discovering a significant difference in quantity or type, the owner or operator must attempt to reconcile the discrepancy with the waste generator or transporter (e.g., with telephone conversations). If the discrepancy is not resolved within 15 days after receiving the waste, the owner or operator must immediately submit to the Secretary a letter describing the discrepancy and attempts to reconcile it, and a copy of the manifest or shipping paper at issue.
(d) (1) Upon rejecting waste or identifying a container residue that exceeds the quantity limits for ‘‘empty’’ containers set forth in DRGHW 261.7(b), the facility must consult with the generator prior to forwarding the waste to another facility that can manage the waste. If it is impossible to locate an alternative facility that can receive the waste, the facility may return the rejected waste or residue to the generator. The facility must send the waste to the alternative facility or to the generator within 60 days of the rejection or the container residue identification.
(2) While the facility is making arrangements for forwarding rejected wastes or residues to another facility under this section, it must ensure that either the delivering transporter retains custody of the waste, or, the facility must provide for secure, temporary custody of the waste, pending delivery of the waste to the first transporter designated on the manifest prepared under paragraph (e) or (f) of this section.
(e) Except as provided in paragraph (e)(7) of this section, for full or partial load rejections and residues that are to be sent off-site to an alternate facility, the facility is required to prepare a new manifest in accordance with § 262.20(a) of this chapter and the following instructions:
(1) Write the generator’s U.S. EPA ID number in Item 1 of the new manifest. Write the generator’s name and mailing address in Item 5 of the new manifest. If the mailing address is different from the generator’s site address, then write the generator’s site address in the designated space for Item 5.
(2) Write the name of the alternate designated facility and the facility’s U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.
(3) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment.
(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).
(5) Write the DOT description for the rejected load or the residue in Item 9 (U.S. DOT Description) of the new manifest and write the container types, quantity, and volume(s) of waste.
(6) Sign the Generator’s/Offeror’s Certification to certify, as the offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation.
(7) For full load rejections that are made while the transporter remains present at the facility, the facility may forward the rejected shipment to the alternate facility by completing Item 18b of the original manifest and supplying the information on the next destination facility in the Alternate Facility space. The facility must retain a copy of this manifest for its records, and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with paragraphs (e)(1), (2), (3), (4), (5), and (6) of this section.
(f) Except as provided in paragraph (f)(7) of this section, for rejected wastes and residues that must be sent back to the generator, the facility is required to prepare a new manifest in accordance with § 262.20(a) of this chapter and the following instructions:
(1) Write the facility’s U.S. EPA ID number in Item 1 of the new manifest. Write the designated facility's name and mailing address in Item 5. If the designated facility's site address is different, then write the site address in the space in Item 5.
(2) Write the name of the initial generator and the generator’s U.S. EPA ID number in the designated facility block (Item 8) of the new manifest.
(3) Copy the manifest tracking number found in Item 4 of the old manifest to the Special Handling and Additional Information Block of the new manifest, and indicate that the shipment is a residue or rejected waste from the previous shipment.
(4) Copy the manifest tracking number found in Item 4 of the new manifest to the manifest reference number line in the Discrepancy Block of the old manifest (Item 18a).
(5) Write the DOT description for the rejected load or the residue in Item 9 (U.S. DOT Description) of the new manifest and write the container types, quantity, and volume(s) of waste.
(6) Sign the Generator’s/Offeror’s Certification to certify, as offeror of the shipment, that the waste has been properly packaged, marked and labeled and is in proper condition for transportation.
(7) For full load rejections that are made while the transporter remains at the facility, the facility may return the shipment to the generator with the original manifest by completing Item 18a and 18b of the manifest and supplying the generator’s information in the Alternate Facility space. The facility must retain a copy for its records and then give the remaining copies of the manifest to the transporter to accompany the shipment. If the original manifest is not used, then the facility must use a new manifest and comply with paragraphs (f)(1), (2), (3), (4), (5), and (6) of this section.
(g) If a facility rejects a waste or identifies a container residue that exceeds the quantity limits for ‘‘empty’’ containers set forth in §261.7(b) after it has signed, dated, and returned a copy of the manifest to the delivering transporter or to the generator, the facility must amend its copy of the manifest to indicate the rejected wastes or residues in the discrepancy space of the amended manifest. The facility must also copy the manifest tracking number from Item 4 of the new manifest to the Discrepancy space of the amended manifest, and must re-sign and date the manifest to certify to the information as amended. The facility must retain the amended manifest for at least three years from the date of amendment, and must within 30 days, send a copy of the amended manifest to the transporter and generator that received copies prior to their being amended.
(Amended August 21, 2006)
11 DE Reg. 809 (12/01/07)
12 DE Reg. 808 (12/01/08)
(a) The owner or operator must keep a written operating record at his facility.
(b) The following information must be recorded, as it becomes available, and maintained in the operating record until closure of the facility:
(1) A description and the quantity of each hazardous waste received, and the method(s) and date(s) of its treatment, storage, or disposal at the facility as required by Appendix I;
(2) The location of each hazardous waste within the facility and the quantity at each location. For disposal facilities, the location and quantity of each hazardous waste must be recorded on a map or diagram of each cell or disposal area. For all facilities, this information must include cross-references to specific manifest document numbers, if the waste was accompanied by a manifest, [Comment: See §264.119 for related requirements.];
(3) Records and results of waste analyses and waste determinations performed as specified in §§ 264.13, 264.17, 264.314, 264.341, 264.1034, 264.1063, 264.1083, 268.4(a), and 268.7 of these regulations;
(4) Summary reports and details of all incidents that require implementing the contingency plan as specified in §264.56(j);
(5) Records and results of inspections as required by §264.15(d) (except these data need be kept only three years);
(6) Monitoring, testing or analytical data, and corrective action where required by Subpart F of this part and §§ 264.19, 264.191, 264.193, 264.195, 264.222, 264.223, 264.226, 264.252 - 264.254, 264.276, 264.278, 264.280, 264.302 - 264.304, 264.309, 264.347, 264.602, 264.1034(c) - 264.1034(f), 264.1035, 264.1063(d) - 264.1063(i), 264.1064, and 264.1082 - 264.1090 of this part;
(7) For off-site facilities, notices to generators as specified in §264.12(b);
(8) All closure cost estimates under §264.142, and for disposal facilities, all post-closure cost estimates under §264.144;
(9) A certification by the permittee no less often than annually, that the permittee has a program in place to reduce the volume and toxicity of hazardous waste that he generates to the degree determined by the permittee to be economically practicable; and the proposed method of treatment, storage or disposal is that practicable method currently available to the permittee which minimizes the present and future threat to human health and the environment;
(10) Records of the quantities (and date of placement) for each shipment of hazardous waste placed in land disposal units under an extension to the effective date of any land disposal restriction granted pursuant to §268.5, a petition pursuant to §268.6, or a certification under §268.8, and the applicable notice required by a generator under §268.7(a);
(11) For an off-site treatment facility, a copy of the notice, and the certification and demonstration, if applicable, required by a the generator or the owner or operator under §268.7 or §268.8;
(12) For an on-site treatment facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7 or §268.8;
(13) For an off-site land disposal facility, a copy the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator of a treatment facility under §268.7 and §268.8, whichever is applicable;
(14) For an on-site land disposal facility, the information contained in the notice required by the generator or owner or operator of a treatment facility under §268.7, except for the manifest number, and the certification and demonstration if applicable, required under §268.8, whichever is applicable;
(15) For an off-site storage facility, a copy of the notice, and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7 or §268.8;
(16) For an on-site storage facility, the information contained in the notice (except the manifest number), and the certification and demonstration if applicable, required by the generator or the owner or operator under §268.7 or §268.8; and
(17) Any records required under §264.1(j)(13).
(Amended June 19, 1992, August 1, 1995, August 21, 1997, January 1, 1999, August 23, 1999, June 2, 2000)
Section 264.74 Availability, retention, and disposition of records.
(a) All records, including plans, required under this part must be furnished upon request, and made available at all reasonable times for inspection, by any officer, employee, or representative of DNREC who is duly designated by the Secretary.
(b) The retention period for all records required under this part is extended automatically during the course of any unresolved enforcement action regarding the facility or as requested by the Secretary.
(c) A copy of records of waste disposal locations and quantities under §264.73(b)(2) must be submitted to the Secretary and local land authority upon closure of the facility.
The owner or operator must prepare and submit a single copy of an Annual Hazardous Waste Report to the State of Delaware, Department of Natural Resources and Environmental Control by no later than March 1st. The Annual Hazardous Waste Report must be submitted on forms designated by the Department, and must be used for this report. The annual report must cover facility activities during the previous calendar year and must include the following information:
(a) The EPA identification number, name, and address of the facility;
(b) The calendar year covered by the report;
(c) For off-site facilities, the EPA identification number of each hazardous waste generator from which the facility received a hazardous waste during the year; for imported shipments, the report must give the name and address of the foreign generator;
(d) A description and the quantity of each hazardous waste the facility received during the year. For off-site facilities, this information must be listed by EPA identification number of each generator;
(e) The method of treatment, storage, or disposal for each hazardous waste;
(f) [Reserved]
(g) The most recent closure cost estimate under §264.142, and for disposal facilities, the most recent post-closure cost estimate under §264.144; and
(h) For generators who treat, store or dispose of hazardous waste on-site, a description of the efforts undertaken during the year to reduce the volume and toxicity of waste generated.
(i) For generators who treat, store, or dispose of hazardous waste on-site, a description of the changes in volume and toxicity of waste actually achieved during the year in comparison to previous years to the extent such information is available for the years prior to 1984.
(j) The certification signed by the owner or operator of the facility or his authorized representative.
(a) If a facility accepts for treatment, storage, or disposal any hazardous waste from an off-site source without an accompanying manifest, or without an accompanying shipping paper as described in §263.20(e) of these regulations, and if the waste is not excluded from the manifest requirement of these regulations, then the owner or operator must prepare and submit a single copy of a report to the Secretary within 15 days after receiving the waste. The unmanifested waste report must include the following information:
(1)The EPA identification number, name, and address of the facility;
(2)The date the facility received the waste;
(3)The EPA identification number, name, and address of the generator and the transporter, if available;
(4)A description and the quantity of each unmanifested hazardous waste and facility received;
(5)The method of treatment, storage, or disposal for each hazardous waste;
(6)The certification signed by the owner or operator of the facility or his authorized representative; and
(7)A brief explanation of why the waste was unmanifested, if known.
(b) Reserved
(Amended August 21, 2006)
Section 264.77 Additional reports.
In addition to submitting the annual report and unmanifested waste reports described in §§ 264.75 and 264.76, the owner or operator must also report to the Secretary:
(a) Releases, fires, and explosions as specified in §264.56(j);
(b) Facility closure as specified in §264.115.
(c) As otherwise required by Subparts F, K through N, AA, BB, and CC of this part.
(d) Groundwater contaminations and monitoring data as specified in §265.93 and §265.94.
(Amended August 1, 1995, January 1, 1999)
Subpart F - Ground-water Protection
Note: In this subpart, At least the uppermost aquifer means any aquifer which the facility has the potential to affect.
(a) (1) Except as provided in paragraph (b) of this section, the regulations in this subpart apply to owners or operators of facilities that treat, store or dispose of hazardous waste. The owner or operator must satisfy the requirements identified in paragraph (a)(2) of this section for all wastes (or constituents thereof) contained in solid waste management units at the facility, regardless of the time at which waste was placed in such units.
(2) All solid waste management units must comply with the requirements in §264.101. A surface impoundment, waste pile, and land treatment unit or landfill that receives hazardous waste after July 26, 1982 (hereinafter referred to as a "regulated unit") must comply with the requirements of §§264.91 - 264.100 in lieu of §264.101 for purposes of detecting, characterizing and responding to releases to the uppermost aquifer. The financial responsibility requirements of §264.101 apply to regulated units.
(b) The owner or operator's regulated unit or units are not subject to regulation for releases into the uppermost aquifer under this subpart if:
(1) The owner or operator is exempted under §264.1; or
(2) He operates a unit which the Secretary finds:
(i) Is an engineered structure,
(ii) Does not receive or contain liquid waste or waste containing free liquids,
(iii) Is designed and operated to exclude liquid, precipitation, and other run-on and run-off,
(iv) Has both inner and outer layers of containment enclosing the waste,
(v) Has a leak detection system built into each containment layer,
(vi) The owner or operator will provide continuing operation and maintenance of these leak detection systems during the active life of the unit and the closure and post-closure care periods, and
(vii) To a reasonable degree of certainty, will not allow hazardous constituents to migrate beyond the outer containment layer prior to the end of the post-closure care period.
(3) The Secretary finds, pursuant to §264.280(d), that the treatment zone of a land treatment unit that qualifies as a regulated unit does not contain levels of hazardous constituents that are above background levels of those constituents by an amount that is statistically significant, and if an unsaturated zone monitoring program meeting the requirements of §264.278 has not shown a statistically significant increase in hazardous constituents below the treatment zone during the operating life of unit. An exemption under this paragraph can only relieve an owner or operator of responsibility to meet the requirements of this subpart during the post-closure care period; or
(4) The Secretary finds that there is no potential for migration of liquid from a regulated unit to the uppermost aquifer during the active life of the regulated unit (including the closure period) and the post-closure care period specified under §264.117. This demonstration must be certified by a qualified geologist or geotechnical engineer. In order to provide an adequate margin of safety in the prediction of potential migration of liquid, the owner or operator must base any predictions made under this paragraph on assumptions that maximize the rate of liquid migration.
(5) He designs and operates a pile in compliance with §264.250(c).
(c) The regulations under this subpart apply during the active life of the regulated unit (including the closure period). After closure of the regulated unit, the regulations of this subpart:
(1) Do not apply if all waste, waste residues, contaminated containment system components, and contaminated subsoils are removed or decontaminated at closure;
(2) Apply during the post closure care period under §264.117 if the owner or operator is conducting a detection monitoring program under §264.98; or
(3) Apply during the compliance period under §264.96 if the owner or operator is conducting a compliance monitoring program under §264.99 or a corrective action program under §264.100.
(d) Regulations in this subpart may apply to miscellaneous units when necessary to comply with §§264.601 and 264.603.
(e) The regulations of this subpart apply to all owners and operators subject to the requirements of §122.1(c)(7), when the DNREC issues either a post-closure permit or an enforceable document (as defined in §122.1(c)(7)) at the facility. When the DNREC issues an enforceable document, references in this subpart to “in the permit” mean “in the enforceable document.”
(f) The Secretary may replace all or part of the requirements of §§ 264.91 through 264.100 applying to a regulated unit with alternative requirements for groundwater monitoring and corrective action for releases to groundwater set out in the permit (or in an enforceable document) (as defined in §122.1(c)(7)) where the Secretary determines that:
(1) The regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the groundwater monitoring and corrective action requirements of §§ 264.91 through 264.100 because alternative requirements will protect human health and the environment.
(Amended August 29, 1988; August 10, 1990, August 23, 1999)
(a) Owners and operators subject to this subpart must conduct a ground-water monitoring and response program as follows:
(1) Whenever hazardous constituents under §264.93 from a regulated unit are detected at the compliance point under §264.95, the owner or operator must institute a compliance monitoring program under §264.99. Detected is defined as statistically significant evidence of contamination as described in §264.98(f);
(2) Whenever the groundwater protection standard under §264.92 is exceeded, the owner or operator must institute a corrective action program under §264.100. Exceeded is defined as statistically significant evidence of increased contamination as described in §264.99(d);
(3) Whenever hazardous constituents under §264.93 from a regulated unit exceed concentration limits under §264.94 in ground-water between the compliance point under §264.95 and the downgradient facility property boundary, the owner or operator must institute a corrective action program under §264.100;
(4) In all other cases, the owner or operator must institute a detection monitoring program under §264.98.
(b) The Secretary will specify in the facility permit the specific elements of the monitoring and response program. The Secretary may include one or more of the programs identified in paragraph (a) of this section in the facility permit as may be necessary to protect human health and the environment and will specify the circumstances under which each of the programs will be required. In deciding whether to require the owner or operator to be prepared to institute a particular program, the Secretary will consider the potential adverse effects on human health and the environment that might occur before final administrative action on a permit modification application to incorporate such a program could be taken.
(c) The owner or operator of a facility which is used to manage hazardous waste must submit to the Department within 120 days of the effective date of these regulations, a hydrogeologic report, except as paragraph (d) of this section provides otherwise. This report must be certified by a qualified engineer or qualified geologist except for (c)(1) of this section which must be certified by a qualified geologist. (See §260.10 for definitions of qualified engineer and qualified geologist). This report shall include at a minimum the following:
(1) A definition of the geology of the site and the surrounding areas. This shall include:
(i) A description of the various lithologic units including mineralogy, grain size distribution, shape and color to a depth which includes at least the uppermost confined aquifer underlying the site; and
(ii) Isopachous and structural contour maps and cross-sections showing these various lithostratigraphic units.
(2) A description of the ground-water movement in at least the water table and uppermost confined aquifers underlying the site and the surrounding area including:
(i) The rate and direction of flow, both horizontally and vertically; and
(ii) A potentiometric surface map and cross-section of each aquifer.
(iii) A map showing the difference in hydraulic head between the water table and uppermost confined aquifers.
(3) A description of hydrologic characteristics of the lithostratigraphic units to a depth which includes at least the uppermost confined aquifer underlying the site and the surrounding area such as, but not limited to, hydraulic conductivity, porosity, aquifer thickness, transmissivity, and storage coefficient.
(4) A description of the chemical quality of the ground-water of at least the water table and uppermost confined aquifer underlying the site and surrounding area to include the parameters specified in §265.9(a) and any other parameters specified by the Department depending on the composition of the waste; a description of the chemical quality of nearby surface water may be required if deemed necessary by the Department.
(5) A prediction of the potential movement of any contaminants that may enter the ground-water underlying the site and the surrounding area including the rate, extent and direction, both horizontal and vertical migration and the potential impact on ground-water and if applicable on surface water.
(6) An estimate of the amount of leachate which may be generated at the site. This shall be done by using methods described in the following publications: "Hydrologic Simulation on Solid Waste Disposal Sites", U.S. Environmental Protection Agency, Office of Water and Waste Management, SW-868, September 1980; or the "Use of the Water Balance Method for Predicting Leachate Generation from Solid Waste Disposal Sites", U.S. Environmental Protection Agency, Office of Solid Waste Management Program, SW-168, October, 1975; or an equivalent method approved by the Department.
(7) A description of the existing ground-water and, if applicable, surface water monitoring program used to detect and determine any contaminant migration at the site and the surrounding area.
(8) A proposal for future monitoring including additional monitoring wells and if applicable surface water monitoring stations, parameters for analysis and monitoring schedule.
(d) All or part of the ground-water monitoring requirements of this section may be waived if the owner or operator can demonstrate that there is a low potential for migration of hazardous waste or hazardous waste constituents from the facility via the uppermost aquifer to water supply wells, (domestic, industrial or agricultural) or to surface water. This demonstration must be in writing, and must be kept at the facility at all times and also must be submitted to and approved by the Department. This demonstration must be certified by a qualified engineer or qualified geologist except in defining the geology and geologic materials in (d)(1)(ii) and d(2)(i) which must be certified by a qualified geologist.
This demonstration must establish the following:
(1) The potential for migration of hazardous waste or hazardous waste constituents from the facility to the upper most aquifer, by an evaluation of:
(i) A water balance of precipitation, evapotranspiration, run-off, and infiltration; and
(ii) Unsaturated zone characteristics (i.e., geology and geologic materials, physical properties, and depth to ground-water); and
(2) The potential for hazardous waste or hazardous waste constituents which enter the uppermost aquifer to migrate to a water supply well or surface water, by an evaluation of:
(i) Saturated zone characteristics (i.e., geology and geologic materials, physical properties, and rate of ground-water flow); and
(ii) The proximity of the facility to water supply wells or surface water.
(Amended August 29, 1988; August 10, 1990; Amended June 19, 1992)
Section 264.92 Ground-water protection standard.
The owner or operator must comply with conditions specified in the facility permit that are designed to ensure that hazardous constituents under §264.93 detected in the ground water from a regulated unit do not exceed the waste management area beyond the point of compliance under §264.95 during the compliance period under §264.96. The Secretary will establish this ground-water protection standard in the facility permit when hazardous constituents have been detected in the ground water.
(Amended August 10, 1990)
(a) The Secretary will specify in the facility permit the hazardous constituents to which the ground-water protection standard of §264.92 applies. Hazardous constituents are constituents identified in Appendix VIII of Part 261 of these regulations that have been detected in groundwater in at least the uppermost aquifer underlying a regulated unit and that are reasonably expected to be in or derived from waste contained in a regulated unit, unless the Secretary has excluded them under paragraph (b) of this section.
(b) The Secretary will exclude an Appendix VIII constituent from the list of hazardous constituents specified in the facility permit if he finds that the constituent is not capable of posing a substantial present or potential hazard to human health or the environment. In deciding whether to grant an exemption, the Secretary will consider the following:
(1) Potential adverse effects on ground-water quality, considering:
(i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity of ground-water and the direction of ground-water flow;
(iv) The proximity and withdrawal rates of ground-water users;
(v) The current and future uses of ground-water in the area;
(vi) The existing quality of ground-water, including other sources of contamination and their cumulative impact on the ground-water quality;
(vii) The potential for health risks caused by human exposure to waste constituents;
(viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;
(ix) The persistence and permanence of the potential adverse effects; and
(2) Potential adverse effects on hydraulically-connected surface water quality, considering:
(i) The volume and physical and chemical characteristics of the waste in the regulated unit;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity and quality of ground-water, and the direction of ground-water flow;
(iv) The patterns of rainfall in the region;
(v) The proximity of the regulated unit to surface waters;
(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;
(vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;
(viii) The potential for health risks caused by human exposure to waste constituents;
(ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and
(x) The persistence and permanence of the potential adverse effects.
(c) In making any determination under paragraph (b) of this section about the use of ground-water in the area around the facility, the Secretary will consider any identification of underground sources of drinking water and exempted aquifers made under Part 122 of these regulations.
(a) The Secretary will specify in the facility permit concentration limits in the ground-water for hazardous constituents established under §264.93. The concentration of a hazardous constituent:
(1) Must not exceed the background level of that constituent in the ground-water at the time that limit is specified in the permit; or
(2) For any of the constituents listed in Table 1, must not exceed the respective value given in that Table if the background level of the constituent is below the value given in Table 1; or
(3) Must not exceed an alternate limit established by the Secretary under paragraph (b) of this section.
Table 1 -- Maximum Concentration of Constituents for Ground-Water Protection
Constituent |
Maximum concentration1 |
Arsenic |
0.05 |
Barium |
1.0 |
Cadmium |
0.01 |
Chromium |
0.05 |
Lead |
0.05 |
Mercury |
0.002 |
Selenium |
0.01 |
Silver |
0.05 |
Endrin (1,2,3,4,10,10-hexachloro-1,7-epoxy-1,4,4a,5,6,7,8,9a-octahydro-1, 4-endo, endo-5,8-dimethano naphthalene) |
0.0002 |
Lindane (1,2,3,4,5,6-hexachlorocyclohexane, gamma isomer) |
0.004 |
Methoxychlor (1,1,1-Trichloro-2,2-bis (p-methoxyphenylethane) |
0.1 |
Toxaphene (C10H10Cl6, Technical chlorinated camphene, 67-69 percent chlorine) |
0.005 |
2,4-D (2,4-Dichlorophenoxyacetic acid) |
0.1 |
2,4,5-TP Silvex (2,4,5-Trichlorophenoxypropionic acid) |
0.01 |
FOOTNOTE: 1Milligrams per liter.
(b) The Secretary will establish an alternate concentration limit for a hazardous constituent if he finds that the constituent will not pose a substantial present or potential hazard to human health or the environment as long as the alternate concentration limit is not exceeded. In establishing alternate concentration limits, the Secretary will consider the following factors;
(1) Potential adverse effects on ground-water quality, considering:
(i) The physical and chemical characteristics of the waste in the regulated unit, including its potential for migration;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity of ground-water and the direction of ground-water flow;
(iv) The proximity and withdrawal rates of ground-water users;
(v) The current and future uses of ground-water in the area;
(vi) The existing quality of ground-water, including other sources of contamination and their cumulative impact on the ground-water quality;
(vii) The potential for health risks caused by human exposure to waste constituents;
(viii) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents;
(ix) The persistence and permanence of the potential adverse effects; and
(2) Potential adverse effects on hydraulically-connected surface water quality, considering:
(i) The volume and physical and chemical characteristics of the waste in the regulated unit;
(ii) The hydrogeological characteristics of the facility and surrounding land;
(iii) The quantity and quality of ground-water, and the direction of ground-water flow;
(iv) The patterns of rainfall in the region;
(v) The proximity of the regulated unit to surface waters;
(vi) The current and future uses of surface waters in the area and any water quality standards established for those surface waters;
(vii) The existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality;
(viii) The potential for health risks caused by human exposure to waste constituents;
(ix) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and
(x) The persistence and permanence of the potential adverse effects.
(c) In making any determination under paragraph (b) of this section about the use of ground-water in the area around the facility the Secretary will consider any identification of underground sources of drinking water and exempted aquifers made under §122.35 of these regulations.
(a) The Secretary will specify in the facility permit the point of compliance at which the ground-water protection standard of §264.92 applies and at which monitoring must be conducted. The point of compliance is a vertical surface located at the hydraulically downgradient limit of the waste management area that extends down into the uppermost aquifer underlying the regulated units.
(b) The waste management area is the limit projected in the horizontal plane of the area on which waste will be placed during the active life of a regulated unit.
(1) The waste management area includes horizontal space taken up by any liner, dike, or other barrier designed to contain waste in a regulated unit.
(2) If the facility contains more than one active regulated unit, the waste management area is described by an imaginary line circumscribing the several regulated units.
(Amended June 19, 1992)
(a) The Secretary will specify in the facility permit the compliance period during which the ground-water protection standard of §264.92 applies. The compliance period is the number of years equal to the active life of the waste management area (including any waste management activity prior to permitting, and the closure period.)
(b) The compliance period begins when the owner or operator initiates a compliance monitoring program meeting the requirements of §264.99.
(c) If the owner or operator is engaged in a corrective action program at the end of the compliance period specified in paragraph (a) of this section, the compliance period is extended until the owner or operator can demonstrate that the groundwater protection standard of §264.92 has not been exceeded for a period of at least three consecutive years.
Section 264.97 General ground-water monitoring requirements.
The owner or operator must comply with the following requirements for any ground-water monitoring program developed to satisfy §§264.98, 264.99, or 264.100;
(a) The ground-water monitoring system must consist of a sufficient number of wells, installed at appropriate locations and depths to yield ground-water samples from at least the uppermost aquifer that:
(1) Represent the quality of background ground water that has not been affected by leakage from a regulated unit;
(i) A determination of background ground-water quality may include sampling of wells that are not hydraulically upgradient of the waste management area where:
(A) Hydrogeologic conditions do not allow the owner or operator to determine what wells are hydraulically upgradient; and
(B) Sampling at other wells will provide an indication of background ground-water quality that is representative or more representative than that provided by the upgradient wells; and
(2) Represent the quality of ground-water passing the point of compliance.
(3) Allow for the detection of contamination when hazardous waste or hazardous constituents have migrated from the waste management area to the uppermost aquifer.
(b) If a facility contains more than one regulated unit, separate ground-water monitoring systems are not required for each regulated unit provided that provisions for sampling the ground-water in at least the uppermost aquifer will enable detection and measurement at the compliance point of hazardous constituents from the regulated units that have entered the ground-water in at least the uppermost aquifer.
(c) All monitoring wells must be cased in a manner that maintains the integrity of the monitoring-well borehole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to
enable collection of ground-water samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the ground-water.
(d) The ground-water monitoring program must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide a reliable indication of ground-water quality below the waste management area. At a minimum the program must include procedures and techniques for:
(1) Sample collection;
(2) Sample preservation and shipment;
(3) Analytical procedures, lower detection limit of the parameter, and quality control procedure;
(4) Chain of custody control.
(e) The ground-water monitoring program must include sampling and analytical methods that are appropriate for ground-water sampling and that accurately measure hazardous constituents in ground-water samples.
(f) The ground-water monitoring program must include a determination of the ground-water surface elevation prior to each time ground-water is sampled.
(g) In detection monitoring or where appropriate in compliance monitoring, data on each hazardous constituent specified in the permit will be collected from background wells and wells at the compliance point(s). The number and kinds of samples collected to establish background shall be appropriate for the form of statistical test employed, following generally accepted statistical principles. The sample size shall be as large as necessary to ensure with reasonable confidence that a contaminant release to ground water from a facility will be detected. The owner or operator will determine an appropriate sampling procedure and interval for each hazardous constituent listed in the facility permit which shall be specified in the unit permit upon approval by the Secretary. This sampling procedure shall be:
(1) A sequence of at least four samples, taken at an interval that assures, to the greatest extent technically feasible, that an independent sample is obtained, by reference to the uppermost aquifer's effective porosity, hydraulic conductivity, and hydraulic gradient, and the fate and transport characteristics of the potential contaminants, or
(2) An alternate sampling procedure proposed by the owner or operator and approved by the Secretary.
(h) The owner or operator will specify one of the following statistical methods to be used in evaluating ground-water monitoring data for each hazardous constituent which, upon approval by the Secretary, will be specified in the unit permit. The statistical test chosen shall be conducted separately for each hazardous constituent in each well. Where practical quantification limits (pql's) are used in any of the following statistical procedures to comply with §264.97(i)(5), the pql must be proposed by the owner or operator and approved by the Secretary. Use of any of the following statistical methods must be protective of human health and the environment and must comply with the performance standards outlined in paragraph (i) of this section.
(1) A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's mean and the background mean levels for each constituent.
(2) An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The method must include estimation and testing of the contrasts between each compliance well's median and the background median levels for each constituent.
(3) A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data, and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit.
(4) A control chart approach that gives control limits for each constituent.
(5) Another statistical test method submitted by the owner or operator and approved by the Secretary.
(i) Any statistical method chosen under §264.97(h) for specification in the unit permit shall comply with the following performance standards, as appropriate:
(1) The statistical method used to evaluate ground-water monitoring data shall be appropriate for the distribution of chemical parameters or hazardous constituents. If the distribution of the chemical parameters or hazardous constituents is shown by the owner or operator to be inappropriate for a normal theory test, then the data should be transformed or a distribution- free theory test should be used. If the distributions for the constituents differ, more than one statistical method may be needed.
(2) If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a ground-water protection standard, the test shall be done at a Type I error level no less than 0.01 for each testing period. If a multiple comparisons procedure is used, the Type I experiment wise error rate for each testing period shall be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained. This performance standard does not apply to tolerance intervals, prediction intervals or control charts.
(3) If a control chart approach is used to evaluate ground-water monitoring data, the specific type of control chart and its associated parameter values shall be proposed by the owner or operator and approved by the Secretary if he or she finds it to be protective of human health and the environment.
(4) If a tolerance interval or a prediction interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, shall be proposed by the owner or operator and approved by the Secretary if he or she finds these parameters to be protective of human health and the environment. These parameters will be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.
(5) The statistical method shall account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment. Any practical quantification limit (pql) approved by the Secretary under §264.97(h) that is used in the statistical method shall be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility.
(6) If necessary, the statistical method shall include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.
(j) Ground-water monitoring data collected in accordance with paragraph (g) of this section including actual levels of constituents must be maintained in the facility operating record. The Secretary will specify in the permit when the data must be submitted for review.
(Amended August 10, 1990)
Section 264.98 Detection monitoring program
An owner or operator required to establish a detection monitoring program under this subpart must, at a minimum, discharge the following responsibilities:
(a) The owner or operator must monitor for indicator parameters (e.g., specific conductance, total organic carbon, or total organic halogenated chloride, iron, manganese, phenols, sodium, sulfate, pH, and those specified in Appendix III in Part 265), waste constituents, or reaction products that provide a reliable indication of the presence of hazardous constituents in ground-water. The Secretary will specify the parameters or constituents to be monitored in the facility permit, after considering the following factors:
(1) The types, quantities, and concentrations of constituents in wastes managed at the regulated unit;
(2) The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the waste management area;
(3) The detectability of indicator parameters, waste constituents, and reaction products in ground-water; and
(4) The concentrations or values and coefficients of variation of proposed monitoring parameters or constituents in the ground-water background.
(b) The owner or operator must install a ground-water monitoring system at the compliance point as specified under §264.95. The ground-water monitoring system must comply with §264.97(a)(2), (b), and(c).
(c) The owner or operator must conduct a ground-water monitoring program for each chemical parameter and hazardous constituent specified in the permit pursuant to paragraph (a) of this section in accordance with §264.97(g). The owner or operator must maintain a record of ground-water analytical data as measured and in a form necessary for the determination of statistical significance under §264.97(h).
(d) The Secretary will specify the frequencies for collecting samples and conducting statistical tests to determine whether there is statistically significant evidence of contamination for any parameter or hazardous
constituent specified in the permit under paragraph (a) of this section in accordance with §264.97(g). A sequence of at least four samples from each well (background and compliance wells) must be collected at least semi-annually during detection monitoring.
(e) Elevation of the ground-water surface at each monitoring well must be determined each time a sample is obtained. The owner or operator must determine the ground-water flow rate and direction in at least the uppermost aquifer at least annually.
(f) The owner or operator must determine whether there is statistically significant evidence of contamination for any chemical parameter of hazardous constituent specified in the permit pursuant to paragraph (a) of this section at a frequency specified under paragraph (d) of this section.
(1) In determining whether statistically significant evidence of contamination exists, the owner or operator must use the method(s) specified in the permit under §264.97(h). These method(s) must compare data collected at the compliance point(s) to the background ground-water quality data.
(2) The owner or operator must determine whether there is a statistically significant evidence of contamination at each monitoring well at the compliance point within a reasonable period of time after completion of sampling. The Secretary will specify in the facility permit what period of time is reasonable, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of groundwater samples.
(g) If the owner or operator determines pursuant to paragraph (f) of this section that there is statistically significant evidence of contamination for chemical parameters or hazardous constituents specified pursuant to paragraph (a) of this section at any monitoring well at the compliance point, he or she must:
(1) Notify the Secretary of this finding in writing within seven days. The notification must indicate what chemical parameters or hazardous constituents have shown statistically significant evidence of contamination;
(2) Immediately sample the ground water in all monitoring wells and determine whether constituents in the list of Appendix IX of Part 264 are present, and if so, in what concentration.
(3) For any Appendix IX compounds found in the analysis pursuant to paragraph (g)(2) of this section, the owner or operator may resample within one month and repeat the analysis for those compounds detected. If the results of the second analysis confirm the initial results, then these constituents will form the basis for compliance monitoring. If the owner or operator does not resample for the compounds found pursuant to paragraph (g)(2) of this section, the hazardous constituents found during this initial Appendix IX analysis will form the basis for compliance monitoring.
(4) Within 90 days, submit to the Secretary an application for a permit modification to establish a compliance monitoring program meeting the requirements of §264.99. The application must include the following information:
(i) An identification of the concentration of any Appendix IX constituent detected in the ground water at each monitoring well at the compliance point;
(ii) Any proposed changes to the ground-water monitoring system at the facility necessary to meet the requirements of §264.99;
(iii) Any proposed additions or changes to the monitoring frequency, sampling and analysis procedures or methods, or statistical methods used at the facility necessary to meet the requirements of §264.99;
(iv) For each hazardous constituent detected at the compliance point, a proposed concentration limit under §264.99(a)(1) or (2), or a notice of intent to seek an alternate concentration limit under §264.94(b); and
(5) Within 180 days, submit to the Secretary:
(i) All data necessary to justify an alternate concentration limit sought under §264.94(b); and
(ii) An engineering feasibility plan for a corrective action program necessary to meet the requirement of §264.100, unless:
(A) All hazardous constituents identified under paragraph (g)(2) of this section are listed in Table 1 of §264.94 and their concentrations do not exceed the respective values given in that Table; or
(B) The owner or operator has sought an alternate concentration limit under §264.94(b) for every hazardous constituent identified under paragraph (g)(2) of this section.
(6) If the owner or operator determines, pursuant to paragraph (f) of this section, that there is a statistically significant difference for chemical parameters or hazardous constituents specified pursuant to paragraph (a) of this section at any monitoring well at the compliance point, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in
sampling, analysis, or statistical evaluation or natural variation in the ground water. The owner operator may make a demonstration under this paragraph in addition to, or in lieu of, submitting a permit modification application under paragraph (g)(4) of this section; however, the owner or operator is not relieved of the requirement to submit a permit modification application within the time specified in paragraph (g)(4) of this section unless the demonstration made under this paragraph successfully shows that a source other than a regulated unit caused the increase, or that the increase resulted from error in sampling, analysis, or evaluation. In making a demonstration under this paragraph, the owner or operator must:
(i) Notify the Secretary in writing within seven days of determining statistically significant evidence of contamination at the compliance point that he intends to make a demonstration under this paragraph;
(ii) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the contamination or that the contamination resulted from error in sampling, analysis, or evaluation;
(iii) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the detection monitoring program facility; and
(iv) Continue to monitor in accordance with the detection monitoring program established under this section.
(h) If the owner or operator determines that the detection monitoring program no longer satisfies the requirements of this section, he or she must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.
(Amended August 29, 1988; August 10, 1990; June 19, 1992, January 1, 1999)
Section 264.99 Compliance monitoring program.
An owner or operator required to establish a compliance monitoring program under this subpart must, at a minimum, discharge the following responsibilities:
(a) The owner or operator must monitor the ground-water to determine whether regulated units are in compliance with the ground-water protection standard under §264.92. The Secretary will specify the ground-water protection standard in the facility permit, including:
(1) A list of the hazardous constituents identified under §264.93;
(2) Concentration limits under §264.94 for each of those hazardous constituents;
(3) The compliance point under §264.95; and
(4) The compliance period under §264.96.
(b) The owner or operator must install a ground-water monitoring system at the compliance point as specified under §264.95. The ground-water monitoring system must comply with §264.97(a)(2), (b), and (c).
(c) The Secretary will specify the sampling procedures and statistical methods appropriate for the constituents and the facility, consistent with §264.97 (g) and (h).
(1) The owner or operator must conduct a sampling program for each chemical parameter or hazardous constituent in accordance with §264.97(g).
(2) The owner or operator must record ground-water analytical data as measured and in form necessary for the determination of statistical significance under §264.97(h) for the compliance period of the facility.
(d) The owner or operator must determine whether there is statistically significant evidence of increased contamination for any chemical parameter or hazardous constituent specified in the permit, pursuant to paragraph (a) of this section, at a frequency specified under paragraph (f) under this section.
(1) In determining whether statistically significant evidence of increased contamination exists, the owner or operator must use the method(s) specified in the permit under §264.97(h). The method(s) must compare data collected at the compliance point(s) to a concentration limit developed in accordance with §264.94.
(2) The owner or operator must determine whether there is statistically significant evidence of increased contamination at each monitoring well at the compliance point within a reasonable time period after completion of sampling. The Secretary will specify that time period in the facility permit, after considering the complexity of the statistical test and the availability of laboratory facilities to perform the analysis of ground-water samples.
(e) The owner or operator must determine the ground-water flow rate and direction in at least the uppermost aquifer at least annually.
(f) The Secretary will specify the frequencies for collecting samples and conducting statistical tests to determine statistically significant evidence of increased contamination in accordance with §264.97(g). A sequence of at least four samples from each well (background and compliance wells) must be collected at least semi-annually during the compliance period of the facility.
(g) The owner or operator must analyze samples from all monitoring wells at the compliance point for all constituents contained in Appendix IX of Part 264 at least annually to determine whether additional hazardous constituents are present in the uppermost aquifer and, if so, at what concentration, pursuant to procedures in §264.98(f). If the owner or operator finds Appendix IX constituents in the ground water that are not already identified in the permit as monitoring constituents, the owner or operator may resample within one month and repeat the Appendix IX analysis. If the second analysis confirms the presence of new constituents, the owner or operator must report the concentration of these additional constituents to the Secretary within seven days after the completion of the second analysis and add them to the monitoring list. If the owner or operator chooses not to resample, then he or she must report the concentrations of these additional constituents to the Secretary within seven days after completion of the initial analysis and add them to the monitoring list.
(h) If the owner or operator determines pursuant to paragraph (d) of this section that any concentration limits under §264.94 are being exceeded at any monitoring well at the point of compliance he must:
(1) Notify the Secretary of this finding in writing within seven days. The notification must indicate what concentration limits have been exceeded.
(2) Submit to the Secretary an application for a permit modification to establish a corrective action program meeting the requirements of §264.100 within 180 days, or within 90 days if an engineering feasibility study has been previously submitted to the Secretary under §264.98(g)(5). The application must at a minimum include the following:
(i) A detailed description of corrective actions that will achieve compliance with the ground-water protection standard specified in the permit under paragraph (a) of this section; and
(ii) A plan for a ground-water monitoring program that will demonstrate the effectiveness of the corrective action. Such a ground-water monitoring program may be based on a compliance monitoring program developed to meet the requirements of this section.
(i) If the owner or operator determines, pursuant to paragraph (d) of this section, that the ground-water concentration limits under this section are being exceeded at any monitoring well at the point of compliance, he or she may demonstrate that a source other than a regulated unit caused the contamination or that the detection is an artifact caused by an error in sampling, analysis or evaluation or natural variation in the ground water. In making a demonstration under this paragraph, the owner or operator must:
(1) Notify the Secretary in writing within seven days that he intends to make a demonstration under this paragraph;
(2) Within 90 days, submit a report to the Secretary which demonstrates that a source other than a regulated unit caused the standard to be exceeded or that the apparent noncompliance with the sampling, analysis, or evaluation;
(3) Within 90 days, submit to the Secretary an application for a permit modification to make any appropriate changes to the compliance monitoring program at the facility; and
(4) Continue to monitor in accord with the compliance monitoring program established under this section.
(j) If the owner or operator determines that the compliance monitoring program no longer satisfies the requirements of this section, he must, within 90 days, submit an application for a permit modification to make any changes to the program.
(Amended August 29, 1988; August 10, 1990; June 19, 1992)
Section 264.100 Corrective action program.
An owner or operator required to establish a corrective action program under this subpart must, at a minimum, discharge the following responsibilities:
(a) The owner or operator must take corrective action to ensure that regulated units are in compliance with the ground-water protection standard under §264.92. The Secretary will specify the ground-water protection standard in the facility permit, including:
(1) A list of the hazardous constituents identified under §264.93;
(2) Concentration limits under §264.94 for each of those hazardous constituents;
(3) The compliance point under §264.95; and
(4) The compliance period under §264.96.
(b) The owner or operator must implement a corrective action program that prevents hazardous constituents from exceeding their respective concentration limits at the compliance point by removing the hazardous waste constituents or treating them in place. The permit will specify the specific measures that will be taken.
(c) The owner or operator must begin corrective action within a reasonable time period after the ground-water protection standard is exceeded. The Secretary will specify that time period in the facility permit. If a facility permit includes a corrective action program in addition to a compliance monitoring program, the permit will specify when the corrective action will begin and such a requirement will operate in lieu of §264.99(i)(2).
(d) In conjunction with a corrective action program, the owner or operator must establish and implement a ground-water monitoring program to demonstrate the effectiveness of the corrective action program. Such a monitoring program may be based on the requirements for a compliance monitoring program under §264.99 and must be as effective as that program in determining compliance with the ground-water protection standard under §264.92 and in determining the success of a corrective action program under paragraph (e) of this section, where appropriate.
(e) In addition to the other requirements of this section, the owner or operator must conduct a corrective action program to remove or treat in place any hazardous constituents under §264.93 that exceed concentration limits under §264.94 in ground-water.
(1) Between the compliance point under section 264.95 and the downgradient property boundary; and
(2) Beyond the facility boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the Secretary that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such action. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis.
(3) Corrective action measures under this paragraph must be initiated and completed within a reasonable period of time considering the extent of contamination.
(4) Corrective action measures under this paragraph may be terminated once the concentration of hazardous constituents under §264.93 is reduced to levels below their respective concentration limits under §264.94.
(f) The owner or operator must continue corrective action measures during the compliance period to the extent necessary to ensure that the ground-water protection standard is not exceeded. If the owner or operator is conducting corrective action at the end of the compliance period, he must continue that corrective action for as long as necessary to achieve compliance with the ground-water protection standard. The owner or operator may terminate corrective action measures taken beyond the period equal to the active life of the waste management area (including the closure period) if he can demonstrate, based on data from the ground-water monitoring program under paragraph (d) of this section, that the ground-water protection standard of §264.92 has not been exceeded for a period of three consecutive years.
(g) The owner or operator must report in writing to the Secretary on the effectiveness of the corrective action program. The owner or operator must submit these reports semi-annually.
(h) If the owner or operator determines that the corrective action program no longer satisfies the requirements of this section, he must, within 90 days, submit an application for a permit modification to make any appropriate changes to the program.
(Amended June 19, 1992, January 1, 1999)
Section 264.101 Corrective action for solid waste management units.
(a) The owner or operator of a facility seeking a permit for the treatment, storage or disposal of hazardous waste must institute corrective action as necessary to protect human health and the environment for all releases of hazardous waste or constituents from any solid waste management unit at the facility, regardless of the time at which waste was placed in such unit.
(b) Corrective action will be specified in the permit in accordance with this section and Subpart S of this part. The permit will contain schedules of compliance for such corrective action (where such corrective action cannot be completed prior to issuance of the permit) and assurances of financial responsibility for completing such corrective action.
(c) The owner or operator must implement corrective actions beyond the facility property boundary, where necessary to protect human health and the environment, unless the owner or operator demonstrates to the satisfaction of the Secretary that, despite the owner's or operator's best efforts, the owner or operator was unable to obtain the necessary permission to undertake such actions. The owner/operator is not relieved of all responsibility to clean up a release that has migrated beyond the facility boundary where off-site access is denied. On-site measures to address such releases will be determined on a case-by-case basis. Assurances of financial responsibility for such corrective action must be provided.
(d) This section does not apply to remediation waste management sites unless they are part of a facility subject to a permit for treating, storing or disposing of hazardous wastes that are not remediation wastes.
(Amended August 29, 1988; June 19, 1992, August 1, 1995, June 2, 2000)
Subpart G - Closure and Post-Closure
Section 264.110 Applicability.
Except as §264.1 provides otherwise:
(a) Sections 264.111-264.115 (which concern closure) apply to the owners and operators of all hazardous waste management facilities; and
(b) Sections 264.116-264.120 (which concern post-closure care) apply to the owners and operators of:
(1) All hazardous waste disposal facilities;
(2) Waste piles and surface impoundments from which the owner or operator intends to remove the wastes at closure to the extent that these sections are made applicable to such facilities in §§264.228 or 264.258;
(3) Tank systems that are required under §264.197 to meet the requirements for landfills; and
(4) Containment buildings that are required under §264.1102 to meet the requirement for landfills.
(c) The Secretary may replace all or part of the requirements of this subpart (and the unit-specific standards referenced in §264.111(c) applying to a regulated unit), with alternative requirements set out in a permit or in an enforceable document (as defined in §122.1(c)(7)), where the Secretary determines that:
(1) The regulated unit is situated among solid waste management units (or areas of concern), a release has occurred, and both the regulated unit and one or more solid waste management unit(s) (or areas of concern) are likely to have contributed to the release; and
(2) It is not necessary to apply the closure requirements of this subpart (and those referenced herein) because the alternative requirements will protect human health and the environment and will satisfy the closure performance standard of §264.111(a) and (b).
(Amended August 29, 1988, August 1, 1995, August 23, 1999)
Section 264.111 Closure performance standard.
The owner or operator must close the facility in a manner that:
(a) Minimizes the need for further maintenance; and
(b) Controls, minimizes or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of hazardous waste, hazardous constituents, leachate, contaminated run-off, or hazardous waste decomposition products to the ground or surface waters or to the atmosphere; and
(c) Complies with the closure requirements of this part, including, but not limited to, the requirements of §§ 264.178, 264.197, 264.228, 264.258, 264.280, 264.310, 264.351, 264.601 through 264.603, and 264.1102.
(Amended August 29, 1988; August 10, 1990, August 1, 1995)
(a) Written plan.
(1) The owner or operator of a hazardous waste management facility must have a written closure plan. In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous waste at partial or final closure are required by §§ 264.228(c)(1)(i) and 264.258(c)(1)(i) to have contingent closure plans. The plan must be submitted with the permit application, in accordance with §122.14(b)(13) of these regulations, and approved by the Secretary as part of the permit issuance procedures under Part 124 of these regulations. In accordance with §122.32, the approved closure plan will become a condition of any permit.
(2) The Secretary's approval of the plan must ensure that the approved closure plan is consistent with §§ 264.111 through 264.115 and the applicable requirements of Subpart F of this part, §§ 264.178, 264.197, 264.228, 264.258, 264.280, 264.310, 264.351, 264.601, and 264.1102. Until final closure is completed and certified in accordance with §264.115, a copy of the approved plan and all approved revisions must be furnished to the Secretary upon request, including requests by mail.
(b) Content of plan. The plan must identify steps necessary to perform partial and/or final closure of the facility at any point during its active life. The closure plan must include, at least:
(1) A description of how each hazardous waste management unit at the facility will be closed in accordance with §264.111;
(2) A description of how final closure of the facility will be conducted in accordance with §264.111. The description must identify the maximum extent of the operations which will be unclosed during the active life of the facility; and
(3) An estimate of the maximum inventory of hazardous wastes ever on-site over the active life of the facility and a detailed description of the methods to be used during partial closures and final closure, including, but not limited to, methods for removing, transporting, treating, storing, or disposing of all hazardous wastes, and identification of the type(s) of the off-site hazardous waste management units to be used, if applicable; and
(4) A detailed description of the steps needed to remove or decontaminate all hazardous waste residues and contaminated containment system components, equipment, structures, and soils during partial and final closure, including, but not limited to, procedures for cleaning equipment and removing contaminated soils, methods for sampling and testing surrounding soils, and criteria for determining the extent of decontamination required to satisfy the closure performance standard; and
(5) A detailed description of other activities necessary during the closure period to ensure that all partial closures and final closures satisfy the closure performance standards, including, but not limited to, ground-water monitoring, leachate collection, and run-on and run-off control; and
(6) A schedule for closure of each hazardous waste management unit and for final closure of the facility. The schedule must include, at a minimum, the total time required to close each hazardous waste management unit and the time required for intervening closure activities which will allow tracking of the progress of partial and final closure. (For example, in the case of a landfill unit, estimates of the time required to treat or dispose of all hazardous waste inventory and of the time required to place a final cover must be included.)
(7) For facilities that use trust funds to establish financial assurance under §264.143 or 264.145 and that are expected to close prior to the expiration of the permit, an estimate of the expected year of final closure.
(8) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 264.90(f), 264.110(c), and/or 264.140(d), either the alternative requirements applying to the regulated unit, or a reference to the enforceable document containing those alternative requirements.
(c) Amendment of plan. The owner or operator must submit a written notification or request for a permit modification to authorize a change in operating plans, facility design, or the approved closure plan in accordance with the procedures in Parts 124 and 122. The written notification or request must include a copy of the amended closure plan for review and approval by the Secretary.
(1) The owner or operator may submit a written notification or request to the Secretary for a permit modification to amend the closure plan at any time prior to the notification of partial or final closure of the facility.
(2) The owner or operator must submit a written notification or request for a permit modification to authorize a change in the approved closure plan whenever:
(i) Changes in operating plans or facility design affect the closure plan, or
(ii) There is a change in the expected year of closure, if applicable, or
(iii) In conducting partial or final closure activities, unexpected events require a modification of the approved closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 264.90(f), 264.110(c), and/or 264.140(d).
(3) The owner or operator must submit a written request for a permit modification including a copy of the amended closure plan for approval at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which had affected the closure plan. If an unexpected event occurs during the partial or final closure period, the owner or operator must request a permit modification no later than 30 days after the event. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to prepare a contingent closure plan under §264.228(c)(1)(i) or 264.258(c)(1)(i), must submit an amended closure plan to the Secretary no later than 60 days from the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of §264.310, or no later than 30 days from that date if the determination is made during partial or final closure. The Secretary will approve, disapprove, or modify this amended plan in accordance with the procedures in Parts 124 and 122. In accordance with §122.32 of these regulations, the approved closure plan will become a condition of any permit issued.
(4) The Secretary may request modifications to the plan under the conditions described in §264.112(c)(2). The owner or operator must submit the modified plan within 60 days of the Secretary's request, or within 30 days if the change in facility conditions occurs during partial or final closure. Any modifications requested by the Secretary will be approved in accordance with the procedures in Parts 124 and 122.
(d) Notification of partial closure and final closure.
(1) The owner or operator must notify the Secretary in writing at least 60 days prior to the date on which he expects to begin closure of a surface impoundment, waste pile, land treatment or landfill unit, or final closure of a facility with such a unit. The owner or operator must notify the Secretary in writing at least 45 days prior to the date on which he expects to begin final closure of a facility with only treatment or storage tanks, container storage, or incinerator units to be closed. The owner or operator must notify the Secretary in writing at least 45 days prior to the date on which he expects to begin partial or final closure of a boiler or industrial furnace, whichever is earlier.
(2) The date when he "expects to begin closure" must be either no later than 30 days after the date on which any hazardous waste management unit receives the known final volume of hazardous wastes or, if there is a reasonable possibility that the hazardous waste management unit will receive additional hazardous wastes, no later than one year after the date on which the unit received the most recent volume of hazardous waste. If the owner or operator of a hazardous waste management unit can demonstrate to the Secretary that the hazardous waste management unit or facility has the capacity to receive additional hazardous wastes and he has taken, and will continue to take, all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements, the Secretary may approve an extension to this one-year limit.
(3) If the facility's permit is terminated, or if the facility is otherwise ordered, by judicial decree or final order under 7 Del.C., Chapter 63 to cease receiving hazardous wastes or to close, then the requirements of this paragraph do not apply. However, the owner or operator must close the facility in accordance with the deadlines established in §264.113.
(e) Removal of wastes and decontamination or dismantling of equipment. Nothing in this section shall preclude the owner or operator from removing hazardous wastes and decontaminating or dismantling equipment in accordance with the approved partial or final closure plan at any time before or after notification of partial or final closure.
(Amended August 29, 1988; August 10, 1990; July 26, 1994, August 1, 1995, January 1, 1999, August 23, 1999)
(a) Within 90 days after receiving the final volume of hazardous wastes at a hazardous waste management unit or facility, the owner or operator must treat, remove from the unit or facility, or dispose of on-site, all hazardous wastes in accordance with the approved closure plan. The Secretary may approve a longer period if the owner or operator complies with all applicable requirements for requesting a modification to the permit and demonstrates that:
(1) (i) The activities required to comply with this paragraph will, of necessity, take longer than 90 days to complete; or
(ii) (A) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and
(B) There is a reasonable likelihood that he or another person will recommence operation of the hazardous waste management unit or the facility within one year, and
(C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment, including compliance with all applicable permit requirements.
(b) The owner or operator must complete partial and final closure activities in accordance with the approved closure plan and within 180 days after receiving the final volume of hazardous wastes at the hazardous waste management unit or facility. The Secretary may approve an extension to the closure period if the owner or operator complies with all applicable requirements for requesting a modification to the permit and demonstrates that:
(1) (i) The partial or final closure activities will, of necessity, take longer than 180 days to complete; or
(ii) (A) The hazardous waste management unit or facility has the capacity to receive additional hazardous wastes; and
(B) There is reasonable likelihood that he or another person will recommence operation of the hazardous waste management unit or the facility within one year; and
(C) Closure of the hazardous waste management unit or facility would be incompatible with continued operation of the site; and
(2) He has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed but not operating hazardous waste management unit or facility, including compliance with all applicable permit requirements.
(c) The demonstrations referred to in §264.113(a) and (b) must be made as follows:
(1) The demonstration in paragraph (a) must be made at least 30 days prior to the expiration of the 90-day period in paragraph (a); and
(2) The demonstration in paragraph (b) must be made at least 30 days prior to the expiration of the 180-day period in paragraph (b).
(Amended August 29, 1988)
Section 264.114 Disposal or decontamination of equipment.
During the partial and final closure periods, all contaminated equipment, structures and soils must be properly disposed of or decontaminated unless otherwise specified in §§264.197, 264.228, 264.258, 264.280, 264.310. By removing any hazardous wastes or hazardous constituents during partial and final closure, the owner or operator may become a generator of hazardous waste and must handle that waste in accordance with all applicable requirements of Part 262 of these regulations.
(Amended August 29, 1988; August 10, 1990)
Section 264.115 Certification of closure.
Within 60 days of completion of closure of each hazardous waste surface impoundment, waste pile, land treatment, and landfill unit, and within 60 days of the completion of final closure, the owner or operator must submit to the Secretary, by registered mail, a certification that the hazardous waste management unit or facility, as applicable, has been closed in accordance with the specifications in the approved closure plan.
The certification must be signed by the owner or operator and by an independent registered professional engineer's. Documentation supporting the independent registered professional engineer's certification must be furnished to the Secretary upon request until he releases the owner or operator from the financial assurance requirements for closure under §264.143(i).
(Amended August 29, 1988)
No later than the submission of the certification of closure of each hazardous waste disposal unit, the owner or operator must submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary, a survey plat indicating the location and dimensions of landfill cells or other hazardous waste disposal units with respect to permanently surveyed benchmarks. This plat must be prepared and certified by a professional land surveyor. The plat filed with the local zoning authority, or the authority with jurisdiction over local land use, must contain a note, prominently displayed, which states the owner's or operator's obligation to restrict disturbance of the hazardous waste disposal unit in accordance with the applicable Subpart G regulations.
(Amended August 29, 1988)
(a) (1) Post closure care for each hazardous waste management unit subject to the requirements of §§264.117-264.120 must begin after completion of closure of the unit and continue for 30 years after that date and must consist of at least the following:
(i) Monitoring and reporting in accordance with the requirements of Subparts F, K, L, M, N and X of this part; and
(ii) Maintenance and monitoring of waste containment systems in accordance with the requirements of Subparts F, K, L, M, N and X of this part.
(2) Any time preceding partial closure of a hazardous waste management unit subject to post-closure care requirements or final closure, or any time during the post-closure period for a particular unit, the Secretary may, in accordance with the permit modification procedures in Parts 124 and 122:
(i) Shorten the post-closure care period applicable to the hazardous waste management unit, or facility, if all disposal units have been closed, if he finds that the reduced periods is sufficient to protect human health and the environment (e.g., leachate or ground-water monitoring results, characteristics of the hazardous wastes, application of advanced technology, or alternative disposal, treatment, or re-use techniques indicate that the hazardous waste management unit or facility is secure); or
(ii) Extend the post-closure care period applicable to the hazardous waste management unit or facility if he finds that the extended period is necessary to protect human health and the environment (e.g., leachate or ground-water monitoring results indicate a potential for migration of hazardous wastes at levels which may be harmful to human health and the environment).
(b) The Secretary may require, at partial and final closure, continuation of any of the security requirements of §264.14 during part or all of the post-closure period when:
(1) Hazardous wastes may remain exposed after completion of partial or final closure; or
(2) Access by the public or domestic livestock may pose a hazard to human health.
(c) Post-closure use of property on or in which hazardous wastes remain after partial or final closure must never be allowed to disturb the integrity of the final cover, liner(s), or any other components of the containment system, or the function of the facility's monitoring systems, unless the Secretary finds that the disturbance:
(1) Is necessary to the proposed use of the property, and will not increase the potential hazard to human health or the environment; or
(2) Is necessary to reduce a threat to human health or the environment.
(d) All post-closure care activities must be in accordance with the provisions of the approved post-closure plan as specified in §264.118.
(a) Written Plan. The owner or operator of a hazardous waste disposal unit must have a written post-closure plan. In addition, certain surface impoundments and waste piles from which the owner or operator intends to remove or decontaminate the hazardous wastes at partial or final closure are required by §§264.228(c)(1)(ii) and 264.258(c)(1)(ii) to have contingent post-closure plans. Owners or operators of surface impoundments and waste piles not otherwise required to prepare contingent post-closure plans under §264.228(c)(1)(ii) and 264.258(c)(1)(ii) must submit a post-closure plan to the Secretary within 90 days from the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of §§264.117 - 264.120. The plan must be submitted with the permit application, in accordance with §122.14(b)(13) of these regulations, and approved by the Secretary as part of the permit issuance procedures under Part 124 of these regulations. In accordance with §122.32 of these regulations, the approved post-closure plan will become a condition of any permit issued.
(b) For each hazardous waste management unit subject to the requirements of this section, the post-closure plan must identify the activities that will be carried on after closure of each disposal unit and the frequency of these activities, and include at least:
(1) A description of the planned monitoring activities and frequencies at which they will be performed to comply with Subparts F, K, L, M, N and X of this part during the post-closure care period; and
(2) A description of the planned maintenance activities, and frequencies at which they will be performed, to ensure:
(i) The integrity of the cap and final cover or other containment systems in accordance with the requirements of Subparts K, L, M, N and X of this part; and
(ii) The function of the monitoring equipment in accordance with the requirements of Subparts F, K, L, M, N and X of this part, and
(3) The name, address, and phone number of the person or office to contact about the hazardous waste disposal unit or facility during the post-closure care period.
(4) For facilities where the Secretary has applied alternative requirements at a regulated unit under §§ 264.90(f), 264.110(c), and/or §264.140(d), either the alternative requirements that apply to the regulated unit, or a reference to the enforceable document containing those requirements.
(c) Until final closure of the facility, a copy of the approved post-closure plan must be furnished to the Secretary upon request, including request by mail. After final closure has been certified, the person or office specified in §264.118(b)(3) must keep the approved post-closure plan during the remainder of the post-closure period.
(d) Amendment of plan. The owner or operator must request a permit notification or request for a permit modification to authorize a change in the approved post-closure plan in accordance with the applicable requirements of Parts 124 and 122. The written notification or request must include a copy of the amended post-closure plan for approval by the Secretary.
(1) The owner or operator may submit a written notification or request to the Secretary for a permit modification to amend the post-closure plan at any time during the active life of the facility or during the post-closure care period.
(2) The owner or operator must submit a written notification of or request for a permit modification to authorize a change in the approved post-closure plan whenever:
(i) Changes in operating plans or facility design affect the approved post-closure plan, or
(ii) There is a change in the expected year of final closure, if applicable, or
(iii) Events which occur during the active life of the facility, including partial and final closures, affect the approved post-closure plan.
(iv) The owner or operator requests the Secretary to apply alternative requirements to a regulated unit under §§ 264.90(f), 264.110(c), and/or §264.140(d).
(3) The owner or operator must submit a written request for a permit modification at least 60 days prior to the proposed change in facility design or operation, or no later than 60 days after an unexpected event has occurred which has affected the post-closure plan. An owner or operator of a surface impoundment or waste pile that intends to remove all hazardous waste at closure and is not otherwise required to submit a contingent post-closure plan under §§264.228(c)(1)(ii) and 264.258(c)(1)(ii) must submit a post closure plan
to the Secretary no later than 90 days after the date that the owner or operator or Secretary determines that the hazardous waste management unit must be closed as a landfill, subject to the requirements of §264.310. The Secretary will approve, disapprove or modify this plan in accordance with the procedures in Parts 124 and 122. In accordance with §122.32 of these regulations, the approved post-closure plan will become a permit condition.
(4) The Secretary may request modifications to the plan under the conditions described in §264.118(d)(2). The owner or operator must submit the modified plan no later than 60 days after the Secretary's request, or no later than 90 days if the unit is a surface impoundment or waste pile not previously required to prepare a contingent post-closure plan. Any modifications requested by the Secretary will be approved, disapproved, or modified in accordance with the procedures in Parts 124 and 122.
(Amended August 29, 1988; August 10, 1990, August 23, 1999)
(a) No later than 60 days after certification of closure of each hazardous waste disposal unit, the owner or operator must submit to the local zoning authority, or the authority with jurisdiction over local land use, and to the Secretary a record of the type, location, and quantity of hazardous wastes disposed of within each cell or other disposal unit of the facility. For hazardous wastes disposed of before January 12, 1981, the owner or operator must identify the type, location, and quantity of the hazardous wastes to the best of his knowledge and in accordance with any records he has kept.
(b) Within 60 days of certification of closure of the first hazardous waste disposal unit and within 60 days of certification of closure of the last hazardous waste disposal unit, the owner or operator must:
(1) Record, in accordance with State law, an environmental covenant, per Delaware Code Title 7, Chapter 79, Subchapter II, with the deed to the facility property that will in perpetuity notify any potential purchaser of the property that:
(i) The land has been used to manage hazardous wastes; and
(ii) Its use is restricted under part 264, Subpart G of these regulations; and
(iii) The survey plat and record of the type, location, and quantity of hazardous wastes disposed of within each cell or other hazardous waste disposal unit of the facility required by §264.116 and §264.119(a) have been filed with the local zoning authority or the authority with jurisdiction over local land use and with the Secretary, and
(2) Submit a certification, signed by the owner or operator, that he has recorded the notation specified in paragraph (b)(1) of this section, including a copy of the document in which the notation has been placed, to the Secretary.
(c) If the owner or operator or any subsequent owner or operator of the land upon which a hazardous waste disposal unit is located wishes to remove hazardous wastes and hazardous waste residues, the liner, if any, or contaminated soils, he must request a modification to the post-closure permit in accordance with the applicable requirements in Parts 124 and 122. The owner or operator must demonstrate that the removal of hazardous wastes will satisfy the criteria of §264.117(c). By removing hazardous waste, the owner or operator may become a generator of hazardous waste and must manage it in accordance with all applicable requirements of these regulations. If he is granted a permit modification or otherwise granted approval to conduct such removal activities, the owner or operator may request that the Secretary approve either:
(1) The termination of the environmental covenant to the facility property or other instrument normally examined during title search; or
(2) The amendment of the environmental covenant or instrument indicating the removal of the hazardous waste.
(Amended August 29, 1988, August 21, 2006)
Section 264.120 Certification of completion of post-closure care.
No later than 60 days after completion of the established post-closure care period for each hazardous waste disposal unit, the owner or operator must submit to the Secretary, by registered mail, a certification that the post-closure care period for the hazardous waste disposal unit was performed in accordance with the specifications in the approved post-closure plan. The certification must be signed by the owner or operator and an independent registered professional engineer. Documentation supporting the independent registered
professional engineer's certification must be furnished to the Secretary upon request until he releases the owner or operator from the financial assurance requirements for post-closure care under §264.145(i).
(Amended August 29, 1988)
(a) The requirements of §§264.142, 264.143, and 264.147-151 apply to owners and operators of all hazardous waste facilities, except as provided otherwise in this section or in §264.1.
(b) The requirements of §264.144, and §264.145 and apply only to owners and operators of:
(1) Disposal facilities;
(2) Piles and surface impoundments from which the owner or operator intends to remove the wastes at closure, to the extent that these sections are made applicable to such facilities in §264.228 and §264.258;
(3) Tank systems that are required under §264.197 to meet the requirements for landfills; and
(4) Containment buildings that are required under §264.1102 to meet the requirements for landfills.
(c) States and the Federal government are exempt from the requirements of this subpart.
(d) The Secretary may replace all or part of the requirements of this subpart applying to a regulated unit with alternative requirements for financial assurance set out in the permit or in an enforceable document (as defined in §122.1(c)(7)), where the Secretary:
(1) Prescribes alternative requirements for the regulated unit under §264.90(f) and/or §264.110(c); and
(2) Determines that it is not necessary to apply the requirements of this subpart because the alternative financial assurance requirements will protect human health and the environment.
(Amended August 29, 1988, August 1, 1995, August 21, 1997, August 23, 1999)
Section 264.141 Definitions of terms as used in this subpart.
(a) Closure plan means the plan for closure prepared in accordance with the requirements of §264.112.
(b) Current closure cost estimate means the most recent of the estimates prepared in accordance with §264.142 (a), (b), and (c).
(c) Current post-closure cost estimate means the most recent of the estimates prepared in accordance with §264.144(a), (b), and (c).
(d) Parent corporation means a corporation which directly owns at least 50 percent of the voting stock of the corporation which is the facility owner or operator; the latter corporation is deemed a subsidiary of the parent corporation.
(e) Post-closure plan means the plan for post-closure care prepared in accordance with the requirements of §§264.117-264.120.
(f) The following terms are used in the specifications for the financial tests for closure, post-closure care, and liability coverage. The definitions are intended to assist in the understanding of these regulations and are not intended to limit the meanings of terms in a way that conflicts with generally accepted accounting practices.
Assets means all existing and all probable future economic benefits obtained or controlled by a particular entity.
Current assets means cash or other assets or resources commonly identified as those which are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.
Current liabilities means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.
Independently audited refers to an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.
Liabilities means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.
Net working capital means current assets minus current liabilities.
Net worth means total assets minus total liabilities and is equivalent to owner's equity.
Tangible net worth means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.
(g) In the liability insurance requirements the terms bodily injury and property damage shall have the meanings given these terms by applicable State law. However, these terms do not include those liabilities which, consistent with standard industry practices, are excluded from coverage in liability policies for bodily injury and property damage. The Department intends the meanings of other terms used in the liability insurance requirements to be consistent with their common meanings within the insurance industry. The definitions given below of several of the terms are intended to assist in the understanding of these regulations and are not intended to limit their meanings in a way that conflicts with general insurance industry usage.
Accidental occurrence means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.
Legal defense costs means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.
Nonsudden accidental occurrence means an occurrence which takes place over time and involves continuous or repeated exposure.
Sudden accidental occurrence means an occurrence which is not continuous or repeated in nature.
(h) Substantial business relationship means the extent of a business relationship necessary under applicable State law to make a guarantee contract issued incident to that relationship valid and enforceable. A “substantial business relationship” must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the owner or operator is demonstrated to the satisfaction of the Secretary.
(Amended May 8, 1986; August 29, 1988, August 1, 1995, January 1, 1999)
(a) The owner or operator must have a detailed written estimate, in current dollars, of the cost of closing the facility in accordance with the requirements in §§ 264.111 - 264.115 and applicable closure requirements in §§ 264.178, 264.197, 264.228, 264.258, 264.280, 264.310, 264.351, 264.601 through 264.603, and 264.1102.
(1) The estimate must equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see §264.112(b)); and
(2) The closure cost estimate must be based on the costs to the owner or operator of hiring a third party to close the facility. A third party is a party who is neither a parent nor a subsidiary of the owner or operator (See definition of parent corporation in §264.141(d)). The owner or operator may use costs for on-site disposal if he can demonstrate that on-site disposal capacity will exist at all times over the life of the facility.
(3) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of hazardous wastes, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.
(4) The owner or operator may not incorporate a zero cost for hazardous wastes that might have economic value.
(5) Owners or operators using the trust fund for closure must include any costs or fees associated with administering the fund into the cost estimate for closure.
(b) During the active life of the facility, the owner or operator must adjust the closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with §264.143. For owners and operators using the financial test or corporate guarantee, the closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before submission of updated information to the Secretary as specified in §264.143(f)(3). The adjustment may be made by recalculating the maximum costs of closure in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business, as specified in paragraphs (b)(1) and (b)(2) of this section. The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.
(1) The first adjustment is made by multiplying the closure cost estimate by the inflation factor. The result is the adjusted closure cost estimate.
(2) Subsequent adjustments are made by multiplying the latest adjusted closure cost estimate by the latest inflation factor.
(c) During the active life of the facility, the owner or operator must revise the closure cost estimate no later than 30 days after the Secretary has approved the request to modify the closure plan, if the change in the closure plan increases the cost of closure. The revised closure cost estimate must be adjusted for inflation as specified in §264.142(b).
(d) The owner or operator must keep the following at the facility during the operating life of the facility: The latest closure cost estimate prepared in accordance with §264.142 (a) and (c) and, when this estimate has been adjusted in accordance with §264.142(b), the latest adjusted closure cost estimate.
(Amended May 8, 1986; August 29, 1988, August 1, 1995)
Section 264.143 Financial assurance for closure.
An owner or operator of each facility must establish financial assurance for closure of the facility. He must choose from the options as specified in paragraphs (a) through (f) of this section.
(a) Closure trust fund.
(1) An owner or operator may satisfy the requirements of this section by establishing a closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary. An owner or operator of a new facility must submit the originally signed duplicate of the trust agreement to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.
(2) The wording of the trust agreement must be identical to the wording specified in §264.151(a)(1), and the trust agreement must be accompanied by a formal certification of acknowledgment (for example, see §264.151(a)(2)). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current closure cost estimate covered by the agreement.
(3) Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the pay-in period. The payments into the closure trust fund must be made as follows:
(i) For a new facility, the first payment must be made before the initial receipt of hazardous waste for treatment, storage, or disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Secretary before this initial receipt of hazardous waste. The first payment must be at least equal to the current closure cost estimate, except as provided in §264.143(g), divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:
CE-CV
Next payment = ______
Y
where CE is the current closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
(ii) If an owner or operator establishes a trust fund as specified in §265.143(a) of these regulations, and the value of that trust fund is less than the current closure cost estimate when a permit is awarded for the facility, the amount of the current closure cost estimate still to be paid into the trust fund must be paid in over the pay-in period as defined in paragraph (a)(3) of this section.
Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to Part 265 of these regulations. The amount of each payment must be determined by this formula:
CE-CV
Next payment = ______
Y
where CE is the current closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
(4) The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the current closure cost estimate at the time the fund is established. However, he must maintain the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraph (a)(3) of this section.
(5) If the owner or operator establishes a closure trust fund after having used one or more alternate mechanisms specified in this section or in §265.143 of these regulations, his first payment must be in at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this paragraph and §265.143(a) of these regulations, as applicable.
(6) After the pay-in period is completed, whenever the current closure 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 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 closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference.
(7) If the value of the trust fund is greater than the total amount of the current closure cost estimate, the owner or operator may submit a written request to the Secretary for release of the amount in excess of the current closure cost estimate.
(8) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, he may submit a written request to the Secretary for release of the amount in excess of the current closure cost estimate covered by the trust fund.
(9) Within 60 days after receiving a request from the owner or operator for release of funds as specified in paragraphs (a)(7) or (8) of this section, the Secretary will instruct the trustee to release to the owner or operator such funds as the Secretary specifies in writing.
(10) After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for partial or final closure activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified. If the Secretary has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, he may withhold reimbursements of such amounts as he deems prudent until he determines, in accordance with §264.143(i) that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the Secretary does not instruct the trustee to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(11) The Secretary will agree to termination of the trust when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(b) Surety bond guaranteeing payment into a closure trust fund.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this
initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
(2) The wording of the surety bond must be identical to the wording specified in §264.151(b).
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the stand by trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond, and
(ii) Until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.143(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the Secretary becomes final, or within 15 days after an order to begin final closure is issued by a U.S. District Court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
(6) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate, except as provided in §264.143(g).
(7) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure cost estimate decreases, the penal sum maybe reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent based on his receipt of evidence of alternate financial assurance as specified in this section.
(c) Surety bond guaranteeing performance of closure.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
(2) The wording of the surety bond must be identical to the wording specified in §264.151(c).
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust must meet the requirements specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.143(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Perform final closure in accordance with the closure plan and other requirements of the permit for the facility whenever required to do so; or
(ii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination pursuant to 7 Del.C., Chapter 63, that the owner or operator has failed to perform final closure in accordance with the approved closure plan and other permit requirements when required to do so, under the terms of the bond the surety will perform final closure as guaranteed by the bond or will deposit the amount of the penal sum into the standby trust fund.
(6) The penal sum of the bond must be in an amount at least equal to the current closure cost estimate.
(7) Whenever the current closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section. Whenever the current closure cost estimate decreases, the penal sum may be reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent. The Secretary will provide such written consent when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(10) The surety will not be liable for deficiencies in the performance of closure by the owner or operator after the Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(d) Closure letter of credit.
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the Secretary. An owner or operator of a new facility must submit the letter of credit to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a Federal or State agency.
(2) The wording of the letter of credit must be identical to the wording specified in §264.151(d).
(3) An owner or operator who uses a letter of credit to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Secretary will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements of the trust fund specified in §264.143(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.143(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the EPA identification number, name, and address of the facility, and the amount of funds assured for closure of the facility by the letter of credit.
(5) The letter of credit must be irrevocable and issued for a period of at least 1 year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least 1 year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the Secretary by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the Secretary have received the notice, as evidenced by the return receipts.
(6) The letter of credit must be issued in an amount at least equal to the current closure cost estimate, except as provided in §264.143(g).
(7) Whenever the current closure cost estimate increases to an amount greater than the amount of the credit, the owner or operator, within 60 days after the increases must either cause the amount of the credit to be increased so that it at least equals the current closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure cost estimate decreases, the amount of the credit may be reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(8) Following a final administrative determination pursuant to 7 Del.C., Chapter 63, that the owner or operator has failed to perform final closure in accordance with the he closure plan and other permit requirements when required to do so, the Secretary may draw on the letter of credit.
(9) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice from issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Secretary will draw on the letter of credit. The Secretary may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the Secretary will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the Secretary.
(10) The Secretary will return the letter of credit to the issuing institution for termination when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(e) Closure insurance.
(1) An owner or operator may satisfy the requirements of this section by obtaining closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the Secretary. An owner or operator of a new facility must submit the certificate of insurance to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(2) The wording of the certificate of insurance must be identical to the wording specified in §264.151(e).
(3) The closure insurance policy must be issued for a face amount at least equal to the current closure cost estimate, except as provided in §264.143(g). The term face amount means the total amount the insurer
is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.
(4) The closure insurance policy must guarantee that funds will be available to close the facility whenever final closure occurs. The policy must also guarantee that once final closure begins, the insurer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the Secretary, to such party or parties as the Secretary specifies.
(5) After beginning partial or final closure, an owner or operator or any other person authorized to conduct closure may request reimbursements for closure expenditures by submitting itemized bills to the Secretary. The owner or operator may request reimbursements for partial closure only if the remaining value of the policy is sufficient to cover the maximum costs of closing the facility over its remaining operating life. Within 60 days after receiving bills for closure activities, the Secretary will instruct the insurer to make reimbursements in such amounts as the Secretary specifies in writing, if the Secretary determines that the partial or final closure expenditures are in accordance with the approved closure plan or otherwise justified. If the Secretary has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the face amount of the policy, he may withhold reimbursements of such amounts as he deems prudent until he determines, in accordance with §264.143(i), that the owner or operator is no longer required to maintain financial assurance for final closure of the facility. If the Secretary does not instruct the insurer to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(6) The owner of operator must maintain the policy in full force effect until the Secretary consents to termination of the policy by the owner or operator as specified in paragraph (e)((10) of this section. Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a significant violation of these regulations, warranting such remedy as the Secretary deems necessary. Such violation will be deemed to begin upon receipt by the Secretary of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.
(7) Each policy must contain a provision allowing assignments of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.
(8) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy, must at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the Secretary. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the Secretary and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration:
(i) The Secretary deems the facility abandoned; or revoked or a new permit is denied; or
(ii) The permit is terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Secretary or a U.S. District Court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), USC; or
(v) The premium due is paid.
(9) Whenever the current closure cost estimate increases to an amount greater than the face amount of the policy, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current closure cost estimate decreases, the face amount may be reduced to the amount of the current closure cost estimate following written approval by the Secretary.
(10) The Secretary will give written consent to the owner or operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(f) Financial test and corporate guarantee for closure.
(1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of either paragraph (f)(1)(i) or (f)(1)(ii) of this section:
(i) The owner or operator must have:
(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates.
(ii) The owner or operator must have:
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's and
(B) Tangible net worth at least six times the sum of the current closure and post-closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates.
(2) The phrase current closure and post-closure cost estimates as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1-4 of the letter from the owner's or operator's chief financial officer [§264.151(f)].
(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Secretary:
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year end financial statements for the latest fiscal year with the amounts in such financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal.
(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Secretary within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.
(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must send notice to the Secretary of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.
(7) The Secretary may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (f)(1) of this section, require reports of financial condition at anytime from the owner or operator in addition to those specified in paragraph (f)(3) of this section. If the Secretary finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.
(8) The Secretary or may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Secretary will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.
(9) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.143(i).
(10) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (8) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). The certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform final closure of a facility covered by the corporate guarantee in accordance with the closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.143(a) in the name of the owner or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternative financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternative financial assurance in the name of the owner or operator.
(g) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this section by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds guaranteeing payment into a trust fund, letters of credit, and insurance. The mechanisms must be as specified in paragraphs (a), (b), (d), and (e), respectively, of this section, except that it is the combination of mechanisms, rather than the single mechanism, which must provide financial assurance for an amount at least equal to the current closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, he may use the trust fund as the standby trust fund for the other mechanisms. The Secretary may use any or all of the mechanisms to provide for closure of the facility.
(h) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the Secretary must include a list showing, for each facility, the EPA Identification Number, name, address, and the amount of funds for closure assured by the mechanism. If the facilities covered by the mechanism are outside of Delaware, a list of facilities and their closure or post-closure costs must be included. If the facilities covered by the mechanism are in more than one State identical evidence of financial assurance must be submitted to and maintained with the State Agency regulating hazardous waste or with the appropriate Regional Administrator if the facility is located in an unauthorized State. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for closure of any of the facilities covered by the mechanism, the Secretary may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.
(i) Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and an independent registered professional engineer that final closure has been completed in accordance with the approved closure plan, the Secretary will notify the owner or operator in writing that he is no longer required by this section to maintain financial assurance for final closure of the facility, unless the Secretary has reason to believe that final closure has not been in accordance with the approved closure plan. The Secretary shall provide the owner or operator a detailed written statement of any such reason to believe that closure has not been in accordance with the approved closure plan.
(Amended August 29, 1988, August 1, 1995, January 1, 1999)
11 DE Reg. 809 (12/01/07)
(a) The owner or operator of a disposal surface impoundment, land treatment, or landfill unit, or of a surface impoundment or waste pile required under §§264.228 and 264.258 to prepare a contingent closure and post-closure plan, must have a detailed written estimate, in current dollars, of the annual cost of post-closure monitoring and maintenance of the facility in accordance with the applicable post-closure regulations in §§264.117-264.120, 264.228, 264.258, 264.280, 264.310 and 264.603.
(1) The post-closure cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct post-closure care activities. A third party is a party who is neither a parent nor a subsidiary of the owner or operator. (See definition of parent corporation in §264.141(d).)
(2) The post-closure cost estimate is calculated by multiplying the annual post-closure cost estimate by the number of years of post-closure care required under §264.117.
(3) Owners or operators using the trust fund for post-closure care must include any costs or fees associated with administering the fund into the cost estimate for post-closure care.
(b) During the active life of the facility, the owner or operator must adjust the post-closure cost estimate for inflation within 60 days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with §264.145. For owners or operators using the financial test or corporate guarantee, the post-closure cost estimate must be updated for inflation within 30 days after the close of the firm's fiscal year and before the submission of updated information to the Secretary as specified in §264.145(f)(5). The adjustment may be made by recalculating the post-closure cost estimate in current dollars or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product published by the U.S. Department of Commerce in its Survey of Current Business as specified in §264.145(b)(1) and (b)(2). The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.
(1) The first adjustment is made by multiplying the post-closure cost estimate by the inflation factor. The result is the adjusted post-closure cost estimate.
(2) Subsequent adjustments are made by multiplying the latest adjusted post-closure cost estimate by the latest inflation factor.
(c) During the active life of the facility, the owner or operator must revise the post-closure cost estimate within 30 days after the Secretary has approved the request to modify the post-closure plan, if the change in the post-closure plan increases the cost of post- closure care. The revised post-closure cost estimate must be adjusted for inflation as specified in §264.144(b).
(d) The owner or operator must keep the following at the facility during the operating life of the facility: The latest post-closure cost estimate prepared in accordance with §264.144(a) and (c) and, when this estimate has been adjusted in accordance with §264.144(b), the latest adjusted post-closure cost estimate.
(Amended August 29, 1988; August 10, 1990)
Section 264.145 Financial assurance for post-closure care.
The owner or operator of a hazardous waste management unit subject to the requirements of §264.144 must establish financial assurance for post- closure care in accordance with the approved post-closure plan for the facility 60 days prior to the initial receipt of hazardous waste or the effective date of the regulation, whichever is later. He must choose from the following options:
(a) Post-closure trust fund.
(1) An owner or operator may satisfy the requirements of this section by establishing a post-closure trust fund which conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary. An owner or operator of a new facility must submit the originally signed duplicate of the trust agreement to the Secretary at least 60 days before the date on which hazardous waste is first received for disposal. The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.
(2) The wording of the trust agreement must be identical to the wording specified in §264.151(a)(1), and the trust agreement must be accompanied by a formal certification of acknowledgment (for example, see §264.151(a)(2)). Schedule A of the trust agreement must be updated within 60 days after a change in the amount of the current post-closure cost estimate covered by the agreement.
(3) Payments into the trust fund must be made annually by the owner or operator over the term of the initial RCRA/State permit or over the remaining operating life of the facility as estimated in the closure plan, whichever period is shorter; this period is hereafter referred to as the pay-in period. The payments into the post-closure trust fund must be made as follows:
(i) For a new facility, the first payment must be made before the initial receipt of hazardous waste for disposal. A receipt from the trustee for this payment must be submitted by the owner or operator to the Secretary before this initial receipt of hazardous waste. The first payment must be at lease equal to the current post-closure cost estimate, except as provided in §264.145(g), divided by the number of years in the pay-in period. Subsequent payments must be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment must be determined by this formula:
CE-CV
Next payment = ______
Y
where CE is the current post-closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
(ii) If an owner of operator establishes a trust fund as specified in §265.145(a) of these regulations, and the value of that trust fund is less than the current post-closure cost estimate when a permit is awarded for the facility, the amount of the current post-closure cost estimate still to be paid into the fund must be paid in over the pay-in period as defined in paragraph (a)(3) of this section. Payments must continue to be made no later than 30 days after each anniversary date of the first payment made pursuant to Part 265 of these regulations. The amount of each payment must be determined by this formula:
CE-CV
Next payment = ______
Y
where CE is the current post-closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.
(4) The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the current post-closure cost estimate at the time the fund is established. However, he must maintain the value of the fund at no less than the value of the fund at no less than the value that the fund would have if annual payments were made as specified in paragraph (a)(3) of this section.
(5) If the owner or operator establishes a post-closure trust fund after having used one or more alternate mechanisms specified in this section or in §265.145 of these regulations, his first payment must be in at least
the amount that the fund would contain if the trust fund were established initially and annual payments made according to specifications of this paragraph and §265.145(a) of these regulations, as applicable.
(6) After the pay-in period is completed, whenever the current post-closure cost estimate changes during the operating life of the facility, 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 60 days after the change in the 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 post-closure cost estimate, or obtain other financial assurance as specified in this section to cover the difference.
(7) During the operating life of the facility, if the value of the trust fund is greater than the total amount of the current post-closure cost estimate,the owner or operator may submit a written request to the Secretary for release of the amount in excess of the current post-closure cost estimate covered by the trust fund.
(8) If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, he may submit a written request to the Secretary for release of the amount in excess of the current post-closure cost estimate covered by the trust fund.
(9) Within 60 days after receiving a request from the owner or operator for release of funds as specified in paragraph (a)(7) or (8) of this section, the Secretary will instruct the trustee to release to the owner or operator such funds as the Secretary specifies in writing.
(10) During the period of post-closure care, the Secretary may approve a release of funds if the owner or operator demonstrates to the Secretary that the value of the trust fund exceeds the remaining cost of post-closure care.
(11) An owner or operator or any other person authorized to conduct post-closure care may request reimbursements for post-closure care expenditures by submitting itemized bills to the Secretary. Within 60 days after receiving bills for post-closure care activities, the Secretary will instruct the trustee to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified. If the Secretary does not instruct the trustee to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(12) The Secretary will agree to termination of the trust when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(b) Surety bond guaranteeing payment into a post-closure trust fund.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.
(2) The wording of the surety bond must be identical to the wording specified in §264.151(b).
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §264.145(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and;
(ii) Until the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post-closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Fund the standby trust fund in an amount equal to the penal sum of the bond before the beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount equal to the penal sum within 15 days after an administrative order to begin final closure issued by the Secretary becomes final, or within 15 days after an order to begin final closure is issued by a U.S. District court or other court of competent jurisdiction; or
(iii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days of receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.
(6) The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate, except as provided in §264.145(g).
(7) Whenever the current post-closure cost estimate increases to an amount greater than the penal sum, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current post-closure cost estimate decreases, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the Secretary.
(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner and operator and the Secretary, as evidenced by the return receipts.
(9) The owner or operator may cancel the bond if the Secretary has given prior written consent based on his receipt of evidence of alternate financial assurance as specified in this section.
(c) Surety bond guaranteeing performance of post-closure care.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond which conforms to the requirements of this paragraph and submitting the bond to the Secretary. An owner or operator of a new facility must submit the bond to the Secretary at least 60 days before the date on which hazardous waste is first received for disposal. The bond must be effective before this initial receipt of hazardous waste. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal Bonds in Circular 570 of the U.S. Department of the Treasury.
(2) The wording of the surety bond must be identical to the wording specified in §264.151(c).
(3) The owner or operator who uses a surety bond to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the bond, all payments made thereunder will be deposited by the surety directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements specified in §264.145(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the surety bond; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations:
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post-closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The bond must guarantee that the owner or operator will:
(i) Perform post-closure care in accordance with the post-closure plan and other requirements of the permit for the facility; or
(ii) Provide alternate financial assurance as specified in this section, and obtain the Secretary's written approval of the assurance provided, within 90 days of receipt by both the owner or operator and the Secretary of a notice of cancellation of the bond from the surety.
(5) Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond. Following a final administrative determination pursuant to 7 Del.C., Chapter 63 that the owner or operator has failed to perform post-closure care in accordance with
the approved post-closure plan and other permit requirements, under the terms of the bond the surety will perform post-closure care in accordance with the post-closure plan and other permit requirements or will deposit the amount of the penal sum into the standby trust fund.
(6) The penal sum of the bond must be in an amount at least equal to the current post-closure cost estimate.
(7) Whenever the current post-closure cost estimate increases to an amount greater than the penal sum during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the penal sum may be reduced to the amount of the current post-closure cost estimate following written approval by the Secretary.
(8) During the period of post-closure care, the Secretary may approve a decrease in the penal sum if the owner or operator demonstrates to the Secretary that amount exceeds the remaining cost of post-closure.
(9) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(10) The owner or operator may cancel the bond if the Secretary has given prior written consent. The Secretary will provide such written consent when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(I).
(11) The surety will not be liable for deficiencies in the performance of post-closure care by the owner or operator after the Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(d) Post-closure letter of credit.
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit which conforms to the requirements of this paragraph and submitting the letter to the Secretary. An owner or operator of a new facility must submit the letter of credit to the Secretary at least 60 days before the date on which hazardous waste is first received for disposal. The letter of credit must be effective before this initial receipt of hazardous waste. The issuing institution must be an entity which has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.
(2) The wording of the letter of credit must be identical to the wording specified in §264.151(d).
(3) An owner or operator who uses a letter of credit to satisfy the requirements of this section must also establish a standby trust fund. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Secretary will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Secretary. This standby trust fund must meet the requirements of the trust fund specified in §264.145(a), except that:
(i) An originally signed duplicate of the trust agreement must be submitted to the Secretary with the letter of credit; and
(ii) Unless the standby trust fund is funded pursuant to the requirements of this section, the following are not required by these regulations.
(A) Payments into the trust fund as specified in §264.145(a);
(B) Updating of Schedule A of the trust agreement (see §264.151(a)) to show current post-closure cost estimates;
(C) Annual valuations as required by the trust agreement; and
(D) Notices of nonpayment as required by the trust agreement.
(4) The letter of credit must be accompanied by a letter from the owner or operator referring to the letter of credit by number, issuing institution, and date, and providing the following information: the EPA identification number, name, and address of the facility, and the amount of funds assured for post-closure care of the facility by the letter of credit.
(5) The letter of credit must be irrevocable and issued for a period of at least 1 year. The letter of credit must provide that the expiration date will be automatically extended for a period of at least 1 year unless, at least 120 days before the current expiration date, the issuing institution notifies both the owner or operator and the Secretary by certified mail of a decision not to extend the expiration date. Under the terms of the letter of credit, the 120 days will begin on the date when both the owner or operator and the Secretary have received the notice, as evidenced by the return receipts.
(6) The letter of credit must be issued in an amount at least equal to the current post-closure cost estimate, except as provided in §264.145(g).
(7) Whenever the current post-closure cost estimate increases to an amount greater than the amount of the credit during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the amount of the credit to be increased so that it at least equals the current post-closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the amount of the credit may be reduced to the amount of the current post-closure cost estimate following written approval by the Secretary.
(8) During the period of post-closure care, the Secretary may approve a decrease in the amount of the letter of credit if the owner or operator demonstrates to the Secretary that the amount exceeds the remaining cost of post-closure care.
(9) Following a final administrative determination pursuant to 7 Del.C., Chapter 63 that the owner or operator has failed to perform post-closure care in accordance with the approved post-closure plan and other permit requirements, the Secretary may draw on the letter of credit.
(10) If the owner or operator does not establish alternate financial assurance as specified in this section and obtain written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice from the issuing institution that it has decided not to extend the letter of credit beyond the current expiration date, the Secretary will draw on the letter of credit. Secretary may delay the drawing if the issuing institution grants an extension of the term of the credit. During the last 30 days of any such extension the Secretary will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the Secretary.
(11) The Secretary will return the letter of credit to the issuing institution for termination when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(e) Post-closure insurance.
(1) An owner or operator may satisfy the requirements of this section by obtaining post-closure insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the Secretary. An owner or operator of a new facility must submit the certificate of insurance to the Secretary at least 60 days before the date on which hazardous waste is first received for disposal. The insurance must be effective before this initial receipt of hazardous waste. At a minimum, the insurer must be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(2) The wording of the certificate of insurance must be identical to the wording specified in §264.151(e).
(3) The post-closure insurance policy must be issued for a face amount at least equal to the current post-closure cost estimate, except as provided in §264.145(g). The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.
(4) The post-closure insurance policy must guarantee that funds will be available to provide post-closure care of the facility whenever the post-closure period begins. The policy must also guarantee that once post-closure care begins, the insurer will be responsible for paying out funds, up to an amount equal to the face amount of the policy, upon the direction of the Secretary, to such party or parties as the Secretary specifies.
(5) An owner or operator or any other person authorized to conduct post-closure care may request reimbursements for post-closure care expenditures by submitting itemized bills to the Secretary. Within 60 days after receiving bills for post-closure care activities, the Secretary will instruct the insurer to make reimbursements in those amounts as the Secretary specifies in writing, if the Secretary determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified. If the Secretary does not instruct the insurer to make such reimbursements, he will provide the owner or operator with a detailed written statement of reasons.
(6) The owner or operator must maintain the policy in full force and effect until the Secretary consents to termination of the policy by the owner or operator as specified in paragraph (e)(11) of this section. Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a significant violation of these regulations, warranting such remedy as the Secretary deems necessary. Such violation will be deemed to begin upon receipt by the Secretary of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration.
(7) Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided such consent is not unreasonably refused.
(8) The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may elect to cancel, terminate, or fail to renew the policy by sending notice by certified mail to the owner or operator and the Secretary. Cancellation, termination, or failure to renew may not occur, however, during the 120 days beginning with the date of receipt of the notice by both the Secretary and the owner or operator, as evidenced by the return receipts. Cancellation, termination, or failure to renew may not occur and the policy will remain in full force and effect in the event that on or before the date of expiration:
(i) The Secretary deems the facility abandoned; or
(ii) The permit is terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Secretary or a U.S. District Court or other court of competent jurisdiction; or
(iv) The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 USC (Bankruptcy); or
(v) The premium due is paid.
(9) Whenever the current post-closure cost estimate increases to an amount greater than the face amount of the policy during the operating life of the facility, the owner or operator, within 60 days after the increase, must either cause the face amount to be increased to an amount at least equal to the current post-closure cost estimate and submit evidence of such increase to the Secretary, or obtain other financial assurance as specified in this section to cover the increase. Whenever the current post-closure cost estimate decreases during the operating life of the facility, the face amount may be reduced to the amount of the current post-closure cost estimate following written approval by the Secretary.
(10) Commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase must be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85 percent of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.
(11) The Secretary will give written consent to the owner or operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(I).
(f) Financial test and corporate guarantee for post-closure care.
(1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of either paragraph (f)(1)(i) or (f)(1)(ii) of this section:
(i) The owner or operator must have:
(A) Two of the following three ratios: a ratio of total liabilities to net worth less than 2.0; a ratio of the sum of net income plus depreciation, depletion, and amortization to total liabilities greater than 0.1; and a ratio of current assets to current liabilities greater than 1.5; and
(B) Net working capital and tangible net worth each at least six times the sum of the current closure and post-closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates.
(ii) The owner or operator must have;
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa as issued by Moody's; and
(B) Tangible net worth at least six times the sum of the current closure and post-closure cost estimates; and
(C) Tangible net worth of at least $10 million; and
(D) Assets located in the United States amounting to at least 90 percent of total assets or at least six times the sum of the current closure and post-closure cost estimates.
(2) The phrase "current closure and post-closure cost estimates" as used in paragraph (f)(1) of this section refers to the cost estimates required to be shown in paragraphs 1-4 of the letter from the owner's or operator's chief financial officer [§264.151(f)].
(3) To demonstrate that he meets this test, the owner or operator must submit the following items to the Secretary:
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(f); and
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Secretary at least 60 days before the date on which hazardous waste is first received for disposal.
(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Secretary within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.
(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must send notice to the Secretary of intent to establish alternate financial assurance as specified in this section. The notice must be sent by certified mail within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the requirements. The owner or operator must provide the alternate financial assurance within 120 days after the end of such fiscal year.
(7) The Secretary may, based on a reasonable belief that the owner or operator may no longer meet the requirements of paragraph (f)(1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in paragraph (f)(3) of this section. If the Secretary finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, the owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of such a finding.
(8) The Secretary may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Secretary will evaluate other qualifications on an individual basis. The owner or operator must provide alternate financial assurance as specified in this section within 30 days after notification of the disallowance.
(9) During the period of post-closure care, the Secretary may approve a decrease in the current post-closure cost estimate for which this test demonstrates financial assurance if the owner or operator demonstrates to the Secretary that the amount of the cost estimate exceeds the remaining cost of post-closure care.
(10) The owner or operator is no longer required to submit the items specified in paragraph (f)(3) of this section when:
(i) On owner or operator substitutes alternate financial assurance as specified in this section; or
(ii) The Secretary releases the owner or operator from the requirements of this section in accordance with §264.145(i).
(11) An owner or operator may meet the requirements of this section by obtaining a written guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (9) of this section and must comply with the terms of the guarantee. The wording of the guarantee must be identical to the wording specified in §264.151(h). A certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee. The terms of the guarantee must provide that:
(i) If the owner or operator fails to perform post-closure care of a facility covered by the corporate guarantee in accordance with the post-closure plan and other permit requirements whenever required to do so, the guarantor will do so or establish a trust fund as specified in §264.145(a) in the name of the owner or operator.
(ii) The corporate guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the Secretary. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the Secretary, as evidenced by the return receipts.
(iii) If the owner or operator fails to provide alternate financial assurance as specified in this section and obtain the written approval of such alternate assurance from the Secretary within 90 days after receipt by both the owner or operator and the Secretary of a notice of cancellation of the corporate guarantee from the guarantor, the guarantor will provide such alternate financial assurance in the name of the owner or operator.
(g) Use of multiple financial mechanisms. An owner or operator may satisfy the requirements of this section by establishing more than one financial mechanism per facility. These mechanisms are limited to trust funds, surety bonds guaranteeing payment into a trust fund, letters of credit, and insurance. The mechanisms must be as specified in paragraphs (a), (b), (d), and (e), respectively, of this section, except that it is the combination of mechanisms, rather than the single mechanism, which must provide financial assurance for an amount at least equal to the current post-closure cost estimate. If an owner or operator uses a trust fund in combination with a surety bond or a letter of credit, he may use the trust fund as the standby trust fund for the other mechanisms. A single standby trust fund may be established for two or more mechanisms. The Secretary may use any or all of the mechanisms to provide for post-closure care of the facility.
(h) Use of a financial mechanism for multiple facilities. An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of this section for more than one facility. Evidence of financial assurance submitted to the Secretary must include a list showing, for each facility, the EPA Identification Number, name, address, and the amount of funds for post-closure care assured by the mechanism. If the facilities covered by the mechanism are outside of Delaware, a list of facilities and their closure and/or post-closure costs must be included. If the facilities covered by the mechanism are in more than one State, identical evidence of financial assurance must be submitted to and maintained with the State Agency regulating hazardous waste or with the appropriate Regional Administrator if the facility is located in an unauthorized State. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each facility. In directing funds available through the mechanism for post-closure care of any of the facilities covered by the mechanism, the Secretary may direct only the amount of funds designated for that facility, unless the owner or operator agrees to the use of additional funds available under the mechanism.
(i) Release of the owner or operator from the requirements of this section. Within 60 days after receiving certifications from the owner or operator and an independent registered professional engineer that the post-closure care period has been completed for a hazardous waste disposal unit in accordance with the approved plan, the Secretary will notify the owner or operator that he is no longer required to maintain financial assurance for post-care of that unit, unless the Secretary has reason to believe that post-closure care has not been in accordance with the approved post-closure plan. The Secretary shall provide the owner or operator with a detailed written statement of any such reason to believe that post-closure care has not been in accordance with the approved post-closure plan.
(Amended August 29, 1988, August 1, 1995, January 1, 1999, August 23, 1999)
11 DE Reg. 809 (12/01/07)
Section 264.146 Use of a mechanism for financial assurance of both closure and post-closure care.
An owner or operator may satisfy the requirements for financial assurance for both closure and post-closure care for one or more facilities by using a trust fund, surety bond, letter of credit, insurance, financial test, or corporate guarantee that meets the specifications for the mechanism in both §§264.143 and 264.145. The amount of funds available through the mechanism must be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for financial assurance of closure and of post-closure care.
(a) Coverage for sudden accidental occurrences. An owner or operator of a hazardous waste treatment, storage, or disposal facility, or a group of such facilities, must demonstrate financial responsibility 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. This liability coverage may be demonstrated as specified in paragraphs (a)(1), (2), (3), (4), (5), or (6) of this section:
(1) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this paragraph.
(i) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in §264.151(i). The wording of the certificate of insurance must be identical to the wording specified in §264.151(j). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Secretary, or EPA Regional Administrator if the facilities are located in more than one EPA Region. If requested by a Secretary, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the insurance policy.
An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The insurance must be effective before this initial receipt of hazardous waste.
(ii) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
( 2) An owner operator may meet the requirements of this section by passing a financial test or using the guarantee for liability coverage as specified in paragraphs (f) and (g) of this section.
( 3) An owner or operator may meet the requirements of this section by obtaining a letter of credit for liability coverage as specified in paragraph (h) of this section.
(4) An owner or operator may meet the requirements of this section by obtaining a surety bond for liability coverage as specified in paragraph (i) of this section.
(5) An owner or operator may meet the requirements of this section by obtaining a trust fund for liability coverage as specified in paragraph (j) of this section.
(6) An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or
operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated must total at least the minimum amounts required by this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this paragraph, the owner or operator shall specify at least one such assurance as “primary” coverage and shall specify other assurance as "excess" coverage.
(7) An owner or operator shall notify the Secretary in writing within 30 days whenever:
(i) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in paragraphs (a)(1) through (a)(6) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under paragraphs (a)(1) through (a)(6) of this section; or
(iii) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under paragraphs (a)(1) through (a)(6) of this section.
(b) Coverage for nonsudden accidental occurrences. An owner or operator of a surface impoundment, landfill, land treatment facility, or disposal miscellaneous unit that is used to manage hazardous waste, or a group of such facilities, must demonstrate financial responsibility 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 per site with an annual aggregate of at least $6 million, exclusive of legal defense costs. An owner or operator who must meet the requirements of this section may combine the required per-occurrence per-site coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate coverage levels for sudden and nonsudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate. This liability coverage may be demonstrated as specified in paragraphs (b)(1), (2), (3), (4), (5), or (6), of this section:
( 1) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this paragraph.
(i) Each insurance policy must be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The wording of the endorsement must be identical to the wording specified in §264.151(i). The wording of the certificate of insurance must be identical to the wording specified in §264.151(j). The owner or operator must submit a signed duplicate original of the endorsement or the certificate of insurance to the Secretary, or EPA Regional Administrator if the facilities are located in more than one Region. If requested by a Secretary, the owner or operator must provide a signed duplicate original of the insurance policy. An owner or operator of a new facility must submit the signed duplicate original of the Hazardous Waste Facility Liability Endorsement or the Certificate of Liability Insurance to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal. The insurance must be effective before this initial receipt of hazardous waste.
(ii) Each insurance policy must be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States.
(2) An owner or operator may meet the requirements of this section by passing a financial test or using the guarantee for liability coverage as specified in paragraphs (f) and (g) of this section.
(3) An owner or operator may meet the requirements of this section by obtaining a letter of credit for liability coverage as specified in paragraph (h) of this section.
(4) An owner or operator may meet the requirements of this section by obtaining a surety bond for liability coverage as specified in paragraph (i) of this section.
(5) An owner or operator may meet the requirements of this section by obtaining a trust fund for liability coverage as specified in paragraph (j) of this section.
(6) An owner or operator may demonstrate the required liability coverage through the use of combinations of insurance, financial test, guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated must total at least the minimum amounts required by this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this paragraph, the owner or operator shall specify at least one such assurance as “primary” coverage and shall specify other assurance as "excess" coverage.
(7) An owner or operator shall notify the Secretary in writing within 30 days whenever:
(i) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in paragraphs (b)(1) through (b)(6) of this section; or
(ii) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under paragraphs (b)(1) through (b)(6) of this section; or
(iii) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or non-sudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under paragraphs (b)(1) through (b)(6) of this section.
(c) [Reserved]
(d) Adjustments by the Secretary. If the Secretary determines that the levels of financial responsibility required by paragraph (a) or (b) of this section are not consistent with the degree and duration of risk associated with treatment, storage, or disposal at the facility or group of facilities, the Secretary may adjust the level of financial responsibility required under paragraph (a) or (b) of this section as may be necessary to protect human health and the environment. This adjusted level will be based on the Secretary's assessment of the degree and duration of risk associated with the ownership or operation of the facility or group of facilities. In addition, if the Secretary determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, landfill, or land treatment facility, he may require that an owner or operator of the facility comply with paragraph (b) of this section. An owner or operator must furnish to the Secretary, within a reasonable time, any information which the Secretary requests to determine whether cause exists for such adjustments of level or type of coverage. Any adjustment of the level or type of coverage for a facility that has a permit will be treated as a permit modification under §§122.15(a)(7)(iii) and 124.5 of these regulations.
(e) Period of coverage. Within 60 days after receiving certifications from the owner or operator and an independent registered professional engineer that final closure has been completed in accordance with the approved closure plan, the Secretary will notify the owner or operator in writing that he is no longer required by this section to maintain liability coverage for that facility, unless the Secretary has reason to believe that closure has not been in accordance with the approved closure plan.
(f) Financial test for liability coverage.
(1) An owner or operator may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this paragraph. To pass this test the owner or operator must meet the criteria of paragraph (f)(l)(i) or (f)(1)(ii):
(i) The owner or operator must have:
(A) Net working capital and tangible net worth each at least six times the amount of liability overage to be demonstrated by this test; and
(B) Tangible net worth of at least $10 million; and
(C) Assets in the United States amounting to either: (1) At least 90 percent of his total assets; or (2) At least six times the amount of liability coverage to be demonstrated by this test.
(ii) The owner or operator must have:
(A) A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as issued by Moody's; and
(B) Tangible net worth of at least $10 million; and
(C) Tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and
(D) Assets in the United States amounting to either: (1) at least 90 percent of his total assets; or (2) at least six times the amount of liability coverage to be demonstrated by this test.
(2) The phrase amount of liability coverage as used in paragraph (f)(l) of this section refers to the annual aggregate amounts for which coverage is required under paragraphs (a) and (b) of this section.
(3) To demonstrate that he meets this test, the owner or operator must submit the following three items to the Secretary:
(i) A letter signed by the owner's or operator's chief financial officer and worded as specified in §264.151(g). If an owner or operator is using the financial test to demonstrate both assurance for closure or post-closure care, as specified by §§264.143(f), 264.145(f), 265.143(e), and 265.145(e), and liability coverage, he must submit the letter specified in §264.151(g) to cover both forms of financial responsibility; a separate letter as specified in §264.151(f) is not required.
(ii) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year.
(iii) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:
(A) He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and
(B) In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.
(4) An owner or operator of a new facility must submit the items specified in paragraph (f)(3) of this section to the Secretary at least 60 days before the date on which hazardous waste is first received for treatment, storage, or disposal.
(5) After the initial submission of items specified in paragraph (f)(3) of this section, the owner or operator must send updated information to the Secretary within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in paragraph (f)(3) of this section.
(6) If the owner or operator no longer meets the requirements of paragraph (f)(1) of this section, he must obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of required liability coverage as specified in this section. Evidence of liability coverage must be submitted to the Secretary within 90 days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the test requirements.
(7) The Secretary may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see paragraph (f)(3)(ii) of this section). An adverse opinion or a disclaimer of opinion will be cause for disallowance. The Secretary will evaluate other qualifications on an individual basis. The owner or operator must provide evidence of insurance for the entire amount of required liability coverage as specified in this section within 30 days after notification of disallowance.
(g) Guarantee for liability coverage.
(1) Subject to paragraph (g)(2) of this section, an owner or operator may meet the requirements of this section by obtaining a written guarantee, hereinafter referred to as "guarantee." The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a "substantial business relationship" with the owner or operator. The guarantor must meet the requirements for owners or operators in paragraphs (f)(1) through (f)(6) of this section. The wording of the guarantee must be identical to the wording specified in §264.151(h)(2) of this part. A certified copy of the guarantee must accompany the items sent to the Secretary as specified in paragraph (f)(3) of this section. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, this letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a "substantial business relationship" with the owner or operator, this letter must describe this "substantial business relationship" and the value received in consideration of the guarantee.
(i) If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this corporate guarantee, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.
(ii) [Reserved]
(2) (i) In the case of corporations incorporated in the United States, a guarantee may be used to satisfy the requirements of this section only if the Attorneys General or Insurance Commissioners of (A) the State in which the guarantor is incorporated, and (B) each State in which a facility covered by the guarantee is located have submitted a written statement to DNREC that a guarantee executed as described in this section and §264.151(h)(2) is a legally valid and enforceable obligation in that State.
(ii) In the case of corporations incorporated outside the United States, a guarantee may be used to satisfy the requirements of this section only if (A) the non-U.S. corporation has identified a registered agent for service of process in each State in which a facility covered by the guarantee is located and in the State in which it has its principal place of business, and (B) the Attorney General or Insurance Commissioner of each State in which a facility covered by the guarantee is located and the State in which the guarantor corporation has its principal place of business, has submitted a written statement to DNREC that a guarantee executed as described in this section and §264.151(h)(2) is a legally valid and enforceable obligation in that State.
(h) Letter of credit for liability coverage.
(1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit that conforms to the requirements of this paragraph and submitting a copy of the letter of credit to the Secretary.
(2) The financial institution issuing the letter of credit must be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by a Federal or State agency.
(3) The wording of the letter of credit must be identical to the wording specified in §264.151(k) of this part.
(4) An owner or operator who uses a letter of credit to satisfy the requirements of this section may also establish a standby trust fund. Under the terms of such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust will be deposited by the issuing institution into the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.
(5) The wording of the standby trust fund must be identical to the wording specified in §264.151(n).
(i) Surety bond for liability coverage.
(1) An owner or operator may satisfy the requirements of this section by obtaining a surety bond that conforms to the requirements of this paragraph and submitting a copy of the bond to the Secretary.
(2) The surety company issuing the bond must be among those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the U.S. Department of the Treasury.
(3) The wording of the surety bond must be identical to the wording specified in §264.151(l) of this part.
(4) A surety bond may be used to satisfy the requirements of this section only if the Attorneys General or Insurance Commissioners of (i) the State in which the surety is incorporated, and (ii) each State in which a facility covered by the surety bond is located have submitted a written statement to EPA that a surety bond executed as described in this section and §264.151(l) of this part is a legally valid and enforceable obligation in that State.
(j) Trust fund for liability coverage.
(1) An owner or operator may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this paragraph and submitting an originally signed duplicate of the trust agreement to the Secretary.
(2) The trustee must be an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.
(3) The trust fund for liability coverage must be funded for the full amount of the liability coverage to be provided by the trust fund before it may be relied upon to satisfy the requirements of this section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the fund, must either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this section to cover the difference. For purposes of this paragraph, "the full amount of the liability coverage to be provided" means the amount of coverage for sudden and/or nonsudden occurrences required to be provided by the owner or operator by this section, less the amount of financial assurance for liability coverage that is being provided by other financial assurance mechanisms being used to demonstrate financial assurance by the owner or operator.
(4) The wording of the trust fund must be identical to the wording specified in §264.151(m) of this part.
(k) Notwithstanding any other provision of this part, an owner or operator using liability insurance to satisfy the requirements of this section may use, until October 16, 1982, a Hazardous Waste Facility Liability Endorsement or Certificate of Liability Insurance that does not certify that the insurer is licensed to transact the business of insurance, or eligible as an excess or surplus lines insurer, in one or more States.
(Amended August 1, 1995, January 1, 1999)
Section 264.148 Incapacity of owners or operators, guarantors, or financial institutions.
(a) An owner or operator must notify the Secretary by certified mail of the commencement of a voluntary or involuntary proceedings under Title 11 (Bankruptcy), U.S. Code, naming the owner or operator as debtor, within 10 days after commencement of the proceeding. A guarantor of corporate guarantee as specified in §§264.143(f) and 264.145(f) must make such notification if he is named as debtor, as required under the terms of the corporate guarantee §264.151(h).
(b) An owner or operator who fulfills the requirements of §§264.143, 264.145, or 264.147 by obtaining a trust fund, surety bond, letter of credit, or insurance policy will be deemed to be without the required financial assurance or liability coverage in the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee institution issuing the surety bond, letter of credit, or insurance policy to issue such instruments. The owner or operator must establish other financial assurance or liability coverage within 60 days after such an event.
(a) (1) A trust agreement for a trust fund, as specified in §264.143(a) or §264.145(a) or §265.143(a) or §265.145(a) of these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
TRUST AGREEMENT
Trust Agreement, the "Agreement," entered into as of [date] by and between [name of the owner or operator], a [name of State] [insert "corporation," "partnership," "association," or "proprietorship"], the "Grantor," and [name of corporate trustee], [insert "incorporated in the State of____" or "a national bank"], the "Trustee."
Whereas, the DNREC, an agency of the State of Delaware, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a hazardous waste management facility shall provide assurance that funds will be available when needed for closure and/or post-closure care of the facility,
Whereas, the Grantor has elected to establish a trust to provide all or part of such financial assurance for the facilities identified herein,
Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this agreement, and the Trustee is willing to act as trustee. Now, therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in this Agreement:
(a) The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities and Cost Estimates. This agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the EPA Identification Number, name, address, and the current closure and/or post-closure cost estimates, or portions thereof, for which financial assurance is demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor and the Trustee hereby establish a trust fund, the "Fund" for the benefit of DNREC. The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided. The Fund is established initially as consisting of the property, which is acceptable to the Trustee, described in Schedule B attached hereto. Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by DNREC.
Section 4. Payment for Closure and Post Closure Care. The Trustee shall make payments from the Fund as the DNREC Secretary shall direct, in writing, to provide for the payment of the costs of closure and/or post-closure care of the facilities covered by this Agreement. The Trustee shall reimburse the Grantor or other persons as specified by the DNREC Secretary from the Fund for closure and post-closure expenditures in such amounts as the DNREC Secretary shall direct in writing. In addition, the Trustee shall refund to the Grantor such amounts as the DNREC Secretary specifies in writing. Upon refund, such funds shall no longer constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund. Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.
Section 6. Trustee Management. The Trustee shall invest and reinvest the principal and income of the fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section. In investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the trust fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of alike character and with like aims; except that;
(i) Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 U.S.C. 80a-2.(a), shall not be acquired or held, unless they are securities or other obligations of the Federal or a State government;
(ii) The Trustee is authorized to invest the Fund in time or demand deposits of Trustee, to the extent insured by an agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein; and
(b) To purchase shares in any investment company registered under the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq., including one which may be created, managed, underwritten, or to which investment advice is rendered or the shares of which are sold by the Trustee. The Trustee may vote such shares in its discretion.
Section 8. Express Powers of Trustee. Without in any way limiting the powers and discretion conferred upon the Trustee by the other provisions of this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale. No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;
(c) To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in interest-bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government; and
(e) To compromise or otherwise adjust all claims in favor of or against the Fund.
12 DE Reg. 1428 (05-01-09)
Section 9. Taxes and Expenses. All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund. All other expenses incurred by the Trustee in connection with the administration of this Trust including fees for legal services rendered to the Trustee, the compensation of the Trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.
Section 10. Annual Valuation. The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the appropriate DNREC Secretary a statement confirming the value of the Trust. Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund. The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the DNREC Secretary shall constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.
Section 11. Advice of Counsel. The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder. The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.
Section 12. Trustee Compensation. The Trustee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.
Section 13. Successor Trustee. The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until Grantor has appointed a successor trustee and this successor accepts the appointment. The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder. Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer, and pay over to the successor trustee the funds and properties then constituting the Fund. If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions. The successor trustee shall specify the date on which it assumes administration of the trust in a writing sent to the Grantor, the DNREC Secretary, and the present Trustee by certified mail 10 days before such change becomes effective. Any expenses incurred by the Trustee as a result of any of the acts contemplated by this section shall be paid as provided in Section 9.
Section 14. Instructions to the Trustee. All orders, requests, and instructions by the Grantor to the Trustee shall be in writing signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendment to Exhibit A. The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests and instructions by the DNREC Secretary to the Trustee shall be in writing, signed by the DNREC Secretary and/or EPA Regional Administrators if the facilities are located outside the State, or their designees and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests and instructions. The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the grantor or DNREC hereunder has occurred. The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or DNREC, except as provided for herein.
Section 15. Notice of Nonpayment. The Trustee shall notify the Grantor and the Secretary or appropriate EPA Regional Administrator, by certified mail within 10 days following the expiration of the 30-day period after
the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period. After the pay-in period is completed, the Trustee shall not be required to send a notice of nonpayment.
Section 16. Amendment of agreement. This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, the Secretary, and the appropriate EPA Regional Administrator, or by the Trustee, the Secretary and the appropriate EPA Regional Administrator if the Grantor ceases to exist.
Section 17. Irrevocability and Termination. Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee, and the DNREC Secretary, or by the Trustee and the DNREC Secretary, if the Grantor cease to exist. Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.
Section 18. Immunity and Indemnification. The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the DNREC Secretary issued in accordance with this Agreement. The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust Fund, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement shall be administered, construed, and enforced according to the laws of the State of Delaware.
Section 20. Interpretation. As used in this Agreement, words in the singular include the plural and words in the plural include the singular. The descriptive headings for each Section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
In witness Whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written: The parties below certify that the wording of this Agreement is identical to the wording specified in §264.151(a)(1) as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(2) The following is an example of the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in §§264.143(a) and 264.145(a) or §265.143(a) or §265.145(a) of these regulations.
State of ______________________________
County of _____________________________
On this [date], before me personally came [owner or operator] to me known, who, being by me duly sworn, did depose and say that she/he resides at [address], that she/he is[title] of [corporation], the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that she/he signed her/his name thereto by like order.
[Signature of Notary Public]
(b) A surety bond guaranteeing payment into a trust fund, as specified in §264.143(b) or §264.145(b) or §265.143(b) or §265.145(b) of this part, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
FINANCIAL GUARANTEE BOND
Date bond executed:____________
Effective date:__________________
Principal: [legal name and business address of owner or operator]
Type of Organization: [insert "individual", "joint venture", "partnership", or "corporation"]
State of incorporation: _____________________
Surety(ies): [name(s) and business address(es)]
EPA Identification Number, name, address and closure and/or post-closure amount(s) for each facility guaranteed by this bond [indicate closure and post-closure amounts separately]: __________________
Total penal sum of bond: $__________________
Surety's bond number: _________________________
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the Department of Natural Resources and Environmental Control in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the 7 Del.C., Chapter 63, to have a permit or interim status in order to own or operate each hazardous waste management facility identified above, and
Whereas said Principal is required to provide financial assurance for closure, or closure and post-closure care, as a condition of the permit or interim status, and
Whereas said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;
Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of each facility identified above, fund the standby trust fund in the amount(s) identified above for the facility,
Or, if the Principal shall fund the standby trust fund in such amount(s) within 15 days after a final order to begin closure is issued by Secretary or a U.S. District Court or other court of competent jurisdiction,
Or, if the Principal shall provide alternate financial assurance, as specified in Subpart H of Parts 264 or 265, of the State of Delaware Regulations Governing Hazardous Wastes as applicable, and obtain the DNREC Secretary's written approval of such assurance, within 90 days after the date notice of cancellations received by both the Principal and the DNREC Secretary from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the DNREC Secretary that the Principal has failed to perform as guaranteed by this bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into the standby trust fund as directed by the DNREC Secretary.
The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the Principal and to the DNREC Secretary, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the Principal and the DNREC Secretary, as evidence by the return receipts.
The Principal may terminate this bond by sending in written notice to the Surety(ies) provided, however, that no such notice shall become effective until the Surety(ies) receives(s) written authorization for termination of the bond by the DNREC Secretary.
[The following paragraph is an optional rider that may be included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post closure amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum, takes place without the written permission of the DNREC Secretary.
In Witness Whereof, the Principal Surety(ies) have executed this Financial Guarantee Bond and have affixed their seals on the date set forth above.
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 §264.151(b) of the State of Delaware Regulations Governing Hazardous Wastes, as such regulations were constituted on the date this bond was executed.
Principal
[Name and address]
State of incorporation: ___________________
Liability limit: $ ________________________
[Signature(s)]
[Name(s) and Title(s)]
[Corporate seal]
[For every co-surety, provide signatures), corporate seal, and other information in the same manner as for Surety above.]
Bond premium: $________________________________
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the Department of Natural Resources and Environmental Control, an agency of the State of Delaware, (hereinafter called DNREC), in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporation acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any and all of us, and for all other purposes each Surety binds itself, jointly and severally with the principal, for the payment of such sum only as is set forth opposite the name of such surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.
(c) A surety bond guaranteeing performance of closure and/or post-closure care, as specified in §264.143(c) or §264.145(c), must be worded as follows, except that the instructions in brackets are to be replaced with the relevant information and the brackets deleted:
PERFORMANCE BOND
Date bond executed:________________________
Effective date:____________________________
Principal: [Legal name and business address of owner or operator]
Type of organization: [insert "individual," "joint venture," "partnership," or "corporation"]
State of incorporation:___________________
Surety(ies): [name(s) and business address(es)]
EPA Identification Number, name, address, and closure and/or post-closure amount(s) for each facility guaranteed by this bond (indicate closure and post-closure amounts separately);_______
Total penal sum of bond: $_____________
Surety's bond number: _________________
Know All Persons By These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the Department of Natural Resources and Environmental Control, an agency of the State of Delaware, (hereinafter called DNREC), in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporation acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the State Statute, to have a permit in order to own or operate each hazardous waste management facility identified above, and
Whereas said Principal is required to provide financial assurance for closure, or closure and post-closure care as a condition of the permit, and
Whereas said Principal shall establish a standby trust fund as is required when a surety bond is used to provide such financial assurance;
Now, therefore, the conditions of this obligation are such that if the Principal shall faithfully perform closure, whenever required to do so, of each facility for which this bond guarantees closure, in accordance with the closure plan and other requirements of the permit as such plan and permit may be amended, pursuant to all applicable laws, statutes, rules, and regulations as such laws, statutes, rules, and regulations may be amended.
And, if the Principal shall faithfully perform post-closure care of each facility for which this bond guarantees post-closure care, in accordance with the post-closure plan and other requirements of the permit as such plan and permit may be amended, pursuant to all applicable laws, statutes, rules and regulations as such laws, statutes, rules, and regulations may be amended.
Or, if the Principal shall provide alternate financial assurance as specified in Subpart H of Part 264 of the State of Delaware Regulations Governing Hazardous Wastes, and obtain the DNREC Secretary's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the DNREC Secretary from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the DNREC Secretary that the Principal has been found in violation of the closure requirements of Part 264, for a facility for which this bond guarantees performance of closure, the Surety(ies) shall either perform closure in accordance with the closure plan and other permit requirements or place the closure amount guaranteed for the facility into the standby trust fund as directed by the DNREC Secretary.
Upon notification by the DNREC Secretary that the Principal has been found in violation of the post-closure requirements of Part 264 for a facility for which this bond guarantees performance of post-closure care, the Surety(ies) shall either perform post-closure care in accordance with the post-closure plan and other permit requirements or place in post-closure amount guaranteed for the facility into the standby trust fund as directed by the DNREC Secretary.
Upon notification by the DNREC Secretary that the Principal has failed to provide alternate financial assurance as specified in Subpart H of Part 264, and obtain written approval of such assurance from the DNREC Secretary during the 90 days following receipt by both the Principal and the DNREC Secretary of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into the standby trust fund as directed by the DNREC Secretary.
The surety(ies) hereby waive(s) notification of amendments to closure plans, permits, applicable laws, statutes, rules, and regulations and agrees that no such amendment shall in any way alleviate its (their) obligation on this bond.
The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.
The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to the DNREC Secretary, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the Principal and the DNREC Secretary as evidenced by the return receipts.
The principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by the DNREC Secretary.
[The following paragraph is an optional rider that may be included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post-closure amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the DNREC Secretary.
In Witness Whereof, The Principal and Surety(ies) have executed this Performance Bond and have affixed their seals on the date set forth above.
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) that the wording of this surety bond is identical to the wording specified in §264.151(c) as such regulation was constituted on the date this bond was executed.
Principal
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate Seal]
Corporate Surety(ies)
[Name and address]
State of incorporation:______________________
Liability limit: $______________________
[Signature(s)]
[Name(s) and Title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.]
Bond premium: $______________________
(d) A letter of credit as specified in §264.143(d) or §264.145(d) or §265.143(c) or §265.145(c) of these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
IRREVOCABLE STANDBY LETTER OF CREDIT
The Secretary of the Department of Natural Resources and Environmental Control, State of Delaware.
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of Credit No._____ in your favor, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [in words] U.S. dollars $--, available upon presentation [insert, if other than the DNREC Secretary is a beneficiary, "by any one of you"] of
(1) your sight draft, bearing reference to this letter of credit No._____, and
(2) your signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to regulations issued under authority of the [State Statute]."
This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each successive expiration date, unless at least 120 days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by both you and [owner's or operator's name] as shown on the signed return receipts.
Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into the standby trust fund of [owner's or operator's name] in accordance with your instructions.
We certify that the wording of this letter of credit is identical to the wording specified in §264.151(d) as such regulations were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing institution][Date]
This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published and copyrighted by the International Chamber of Commerce," or "the Uniform Commercial Code"].
(e) A certificate of insurance as specified in §264.143(e) or §§264.145(e) or 265.143(d) or 265.145(d) of these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
CERTIFICATE OF INSURANCE FOR CLOSURE OR POST-CLOSURE CARE
Name and Address of Insurer
(herein called the "Insurer"): ___________________
Name and Address of Insured
(herein called the "Insured"): ___________________
Facilities Covered: [List for each facility: The EPA identification number, name, address, and the amount of insurance for closure and/or the amount for post-closure care (these amounts for all facilities covered must total the face amount shown below).]
Face Amount: ___________________________
Policy Number: __________________________
Effective Date: ___________________________
The Insurer hereby certifies that it has issued to the Insured the policy of insurance identified above to provide financial assurance for [insert "closure" or "closure and post-closure care" or "post-closure care"] for the facilities identified above. The Insurer further warrants that such policy conforms in all respects with the requirements of §§264.143(e), 264.145(e), 265.143(d), and 265.145(d) as applicable and as such regulations were constituted on the date shown immediately below. It is agreed that any provision of the policy inconsistent with such regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the DNREC Secretary, the Insurer agrees to furnish to the DNREC Secretary a duplicate original of the policy listed above, including all endorsements thereon.
I hereby certify that the wording of this certificate is identical to the wording specified in §264.151(e) as such regulations were constituted on the date shown immediately below.
[Authorized signature for Insurer]
[Name of person signing]
[Title of person signing]
Signature of witness or notary: __________________
[Date]
(f) A letter from the chief financial officer, as specified in §264.143(f) or 264.145(f) or 265.143(e) or 265.145(e) of these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
[Address Letter From the Chief Financial Officer to the DNREC Secretary]
I am the chief financial officer of [name and address of firm]. This letter is in support of this firm's use of the financial test to demonstrate financial assurance for closure and/or post-closure costs, as specified in Subpart H of Parts 264 and 265.
[Fill out the following five paragraphs regarding facilities and associated cost estimates. If your firm has no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its EPA Identification Number, name, address, and current closure and/or post-closure cost estimates. Identify each cost estimate as to whether it is for closure or post-closure care].
1. This firm is the owner or operator of the following facilities for which financial assurance for closure or post-closure care is demonstrated through the financial test specified in Subpart H of Parts 264 and 265. The current closure and/or post-closure cost estimates covered by the test are shown for each facility: .
2. This firm guarantees, through the guarantee specified in Subpart H of Parts 264 and 265, the closure or post-closure care of the following facilities owned or operated by the guaranteed party. The current cost estimates for the closure or post-closure care so guaranteed are shown for each facility: . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee ; or (3) engaged in the following substantial business relationship with the owner or operator , and receiving the following value in consideration of this guarantee ]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter].
3. In States where DNREC or EPA is not administering the financial requirements of Subpart H of Part 264 or 265, this firm, as owner or operator or guarantor, is demonstrating financial assurance for the closure or post-closure care of the following facilities through the use of a test equivalent or substantially equivalent to the financial test specified in Subpart H of Parts 264 and 265. The current closure and/or post-closure cost estimates covered by such a test are shown for each facility: .
4. This firm is the owner or operator of the following hazardous waste management facilities for which financial assurance for closure or, if a disposal facility, post-closure care, is not demonstrated either to EPA or a State through the financial test or any other financial assurance mechanism specified in Subpart H of Parts 264 and 265 or equivalent or substantially equivalent State mechanisms. The current closure and/or post-closure cost estimates not covered by such financial assurance are shown for each facility: .
5. This firm is the owner or operator of the following UIC facilities for which financial assurance for plugging and abandonment is required under Part 144. The current closure cost estimates as required by 40 CFR 144.62 are shown for each facility: .
This firm [insert "is required" or "is not required"] to file a Form 10K with the Securities and Exchange Commission (SEC) for the latest fiscal year.
The fiscal year of this firm ends on [month, day]. The figures for the following items marked with an asterisk are derived from this firm's independently audited, year-end financial statements for the latest completed fiscal year, ended [date].
[Fill in Alternative I if the criteria of paragraph (f)(1)(i) of §264.143 or §264.145, or of paragraph (e)(1)(i) of §265.143 or §265.145 of these regulations are used. Fill in Alternative II if the criteria of paragraph (f)(1)(ii) of §264.143 or §264.145, or of paragraph (e)(1)(ii) of §265.143 or §265.145 of these regulations are used.]
Alternative I
1. Sum of current closure and post-closure cost estimate [total of all cost estimates shown in the five paragraphs above] $
*2. Total liabilities [if any portion of the closure or post-closure cost estimates is included in total liabilities, you may deduct the amount of that portion from this line and add that amount to lines 3 and 4] $
*3. Tangible net worth $
*4. Net worth $
*5. Current assets $
*6. Current liabilities $
7. Net working capital [line 5 minus line 6] $
*8. The sum of net income plus depreciation, depletion, and amortization $
*9. Total assets in U.S. (required only if less than 90% of firm's assets are located in the U.S.) $
10. Is line 3 at least $10 million? (Yes/No)
11. Is line 3 at least 6 times line 1? (Yes/No)
12. Is line 7 at least 6 times line 1? (Yes/No)
*13. Are at least 90% of firm's assets located in the U.S.? If not, complete line 14 (Yes/No)
14. Is line 9 at least 6 times line 1? (Yes/No)
15. Is line 2 divided by line 4 less than 2.0? (Yes/No)
16. Is line 8 divided by line 2 greater than 0.1? (Yes/No)
17. Is line 5 divided by line 6 greater than 1.5? (Yes/No)
Alternative II
1. Sum of current closure and post-closure cost estimates [total of all cost estimates shown in the five paragraphs above] $
2. Current bond rating of most recent issuance of this firm and name of rating service
3. Date of issuance of bond
4. Date of maturity of bond
*5. Tangible net worth [if any portion of the closure and post-closure cost estimates is included in "total liabilities" on your firm's financial statements, you may add the amount of that portion to this line] $
*6. Total assets in U.S. (required only if less than 90% of firm's assets are located in the U.S.) $
7. Is line 5 at least $10 million ? (Yes/No)
8. Is line 5 at least 6 times line 1? (Yes/No)
*9. Are at least 90% of firm's assets located in the U.S.? If not, complete line 10 (Yes/No)
10. Is line 6 at least 6 times line 1? (Yes/No)
I hereby certify that the wording of this letter is identical to the wording specified in 264.151(f) as such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
(g) A letter from the chief financial officer, as specified in §264.147(f) or §265.147(f) of these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.
LETTER FROM CHIEF FINANCIAL OFFICER
[Address to DNREC Secretary and Regional Administrator of every Region in which facilities for which financial responsibility is to be demonstrated through the financial test are located].
I am the chief financial officer of [firm's name and address]. This letter is in support of the use of the financial test to demonstrate financial responsibility for liability coverage [insert "and closure and/or post-closure care" if applicable] as specified in Subpart H of Parts 264 and 265.
[Fill out the following paragraphs regarding facilities and liability coverage. If there are no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its DNREC identification number, name, and address].
The firm identified above is the owner or operator of the following facilities for which liability coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences is being demonstrated through the financial test specified in Subpart H of Parts 264 and 265:
The firm identified above guarantees, through the guarantee specified in Subpart H of Parts 264 and 265, liability coverage for [insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences at the following facilities owned or operated by the following: . The firm identified above is [insert one or more: (1) The direct or higher-tier parent corporation of the owner or operator; (2) owned by the same parent corporation as the parent corporation of the owner or operator, and receiving the following value in consideration of this guarantee ; or (3) engaged in the following substantial business relationship with the owner or operator , and receiving the following value in consideration of this guarantee ]. [Attach a written description of the business relationship or a copy of the contract establishing such relationship to this letter.]
[If you are using the financial test to demonstrate coverage of both liability and closure and post-closure care, fill in the following five paragraphs regarding facilities and associated closure and post-closure cost estimates. If there are no facilities that belong in a particular paragraph, write "None" in the space indicated. For each facility, include its DNREC identification number, name, address, and current closure and/or post