Regulations: Title 27, Environmental Protection--Division 2, Solid Waste

Chapter 6. Financial Assurances at Solid Waste Facilities and at Waste Management Units for Solid Waste

Subchapter 3. Allowable Mechanisms

Article 1. CIWMB - General Requirements for Mechanisms

(a) Except as provided in (b), and Section 22228, an operator using a trust fund or an enterprise fund to demonstrate financial responsibility for closure and/or postclosure maintenance and/or reasonably foreseeable corrective action costs shall maintain a fund balance equal to or exceeding the amount specified by the following provisions:

(1) By each anniversary date of the establishment of the fund, the operator shall submit the following information to the CIWMB. The estimates shall be consistent with the information in the solid waste landfill’s current Report of Disposal Site Information specified in Section 21680, and/or the most recently submitted closure plan, or postclosure maintenance plan, and/or reasonably foreseeable corrective action cost estimate.

(A) A demonstration of the minimum fund balance calculation as required in (a)(2);

(B) The annual capacity filled during the past year;

(C) The cumulative capacity filled;

(D) The remaining cost estimate;

(E) The remaining permitted capacity; and

(F) The total permitted capacity.

(2) On each anniversary date of the establishment of the fund, the minimum fund balance shall be increased by the quantity determined by the following formulas:

(A) For anniversary dates that occur before December 31, 1993, the minimum deposit is calculated by,

(C_f/C_t) X E = minimum deposit ,

where C_f is the annual capacity filled, C_t is the total permitted capacity, and E is the current closure and/or postclosure cost and/or reasonably foreseeable corrective action costs estimate(s) covered by the fund; and

(B) For anniversary dates that occur on or after December 31, 1993, the minimum deposit is calculated by,

(C_f/C_r) X E_r = minimum deposit ,

where C_f is the annual capacity filled, C_r is the remaining permitted capacity, E_r is the remaining closure and/or postclosure cost and/or reasonably foreseeable corrective action costs estimate(s) to be funded.

(3) The fund must be fully funded by the time the last shipment of waste has been received at the disposal facility.

(4) The CIWMB may approve a change of the anniversary date of the establishment of the fund only once, and at the written request of the operator. The operator may execute the anniversary date change only after the CIWMB has approved the change.

(b) If an operator establishes a trust fund or enterprise fund after using one or more alternate mechanisms specified in this Article, the initial payment into the fund must be at least the amount that the fund would contain if the trust fund or enterprise fund were established initially and annual payments were made according to the formula(s) specified in this section.

Note:

Authority cited:
Section 40502, Public Resources Code.

Reference:
Sections 43103 and 43501, Public Resources Code.

(a) An operator using a trust fund or an enterprise fund to demonstrate financial responsibility for known corrective action costs shall maintain a fund balance equal to or exceeding the amount specified by the following provisions:

(1) Payments into the known corrective action fund must be made annually by the operator over one-half of the estimated length of the known corrective action program. This period is referred to as the pay-in period.

(2) For a trust fund or enterprise fund used to demonstrate financial assurance for corrective action, the first payment into the fund must be at least equal to one-half of the current cost estimate for corrective action, divided by the number of years in the corrective action pay-in period as defined in (a)(1). The amount of subsequent payments must be determined by the following formula:

Next Payment: RB-CV,
Y

where RB is the most recent estimate of the required fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the fund, and Y is the number of years remaining in the pay-in period.

(3) The initial payment into the fund must be made no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of Article 1, Subchapter 3, Chapter 3 (Section 20380 et seq.).

(4) If the operator establishes a fund after having used one or more alternate mechanisms specified in this Subchapter, the initial payment into the fund must be at least the amount that the fund would contain if the fund were established initially and annual payments made according to the specifications of this section.

(5) The fund may be terminated by the operator only if the operator substitutes alternate financial assurance as specified in this Subchapter or is no longer required to demonstrate financial responsibility in accordance with the requirements of Article 4 of Subchapter 2 of this Chapter.

Note:

Authority cited:
Sections 40502 and 40508, Public Resources Code.

Reference:
Sections 40508 and 43103, Public Resources Code; Section 258.74 Title 40 Code of Federal Regulations.

(a) An operator may substitute any alternate financial assurance mechanism(s) acceptable to the CIWMB as specified in this Subchapter, provided that at all times the operator maintains an effective mechanism or a combination of effective mechanisms that satisfies the applicable requirements of this Subchapter.

(b) After obtaining alternate financial assurance, an operator may request that the CIWMB terminate or authorize the termination of a financial assurance mechanism. The operator shall submit such a request in writing with evidence of alternate financial assurance.

(c) Following approval by the CIWMB, the operator may cancel a financial assurance mechanism by giving notice to the provider of financial assurance.

Note:

Authority cited:
Section 40502, Public Resources Code

Reference:
Sections 43103, 43500-43610, Public Resources Code.

(a) Subject to the limitations and conditions of  (b) through (j), an operator shall use any one, or any combination of mechanisms as described in Article 2 of this Subchapter:

1. Section 22240, Trust Fund;
2. Section 22241, Enterprise Fund;
3. Section 22242, Government Securities;
4. Section 22243, Letter of Credit;
5. Section 22244, Surety Bond;
6. Section 22245, Pledge of Revenue;
7. Section 22246, Financial Means Test;
8. Section 22247, Guarantee;
9. Section 22248, Closure and/or Postclosure Maintenance and/or Reasonably Foreseeable Corrective Action Costs Insurance;
10. Section 22249, Local Government Financial Test;
11. Section 22249.5, Local Government Guarantee;
12. Section 22250, Federal Certification;
13. Section 22251, Liability Insurance;
14. Section 22252, Self-Insurance and Risk Management;
15. Section 22253, Insurance and Environmental Fund; and
16. Section 22254, State Approved Mechanism.

(b) Any mechanism(s) used to demonstrate financial responsibility shall be updated within 60 days after changes are made in the amount of any current closure or postclosure cost estimate or third party liability coverage requirement or corrective action cost estimate covered by the mechanism(s).

(c) If a combination of mechanisms as described in Article 2 of this Subchapter are chosen, the operator shall designate one mechanism as "primary" and all others as "excess" coverage.

(d) If an operator combines a trust fund and/or an enterprise fund with any other mechanism to cover closure costs and/or postclosure maintenance costs and/or third party operating liability coverage requirements and/or corrective action costs, the operator may only use the fund buildup authorized by Section 22225 and/or Section 22226, for the portion of closure and/or postclosure maintenance costs and/or corrective action costs covered by the trust fund and/or enterprise fund.

(e) The enterprise fund, government securities, local government financial test, and self-insurance and risk management mechanisms are acceptable only for disposal facilities operated by government agencies. A local government guarantee and a pledge of revenue may be used by an operator or provider of financial assurances that is a government agency for a disposal facility to demonstrate financial responsibility for postclosure maintenance and/or corrective actions.

(f) An operator shall not combine a performance bond or a local government guarantee with any other mechanism(s) for closure, for postclosure maintenance, or for corrective action.

(g) The financial means test and guarantee mechanisms are acceptable only for disposal facilities operated by private firms. A private operator may combine a financial means test with a guarantee only if, for the purpose of meeting the requirements of the financial means test, the financial statements of the operator are not consolidated with the financial statements of the guarantor.

(h) The insurance and environmental fund mechanism shall not be combined with any other mechanisms identified in (a).

(i) The Federal Certification mechanism provided in Section 22250 shall only be used by federal entities.

(j) A government agency may act as a provider of financial assurance for a disposal facility by using a pledge of revenue to demonstrate financial responsibility for postclosure maintenance on behalf of a private operator, if either:

1. The agency owns the facility; or
2. The agency is the rate setting authority and has control of the waste stream in the jurisdiction where the disposal facility is located.

(k) A government agency may provide a local government guarantee for a disposal facility of another government agency or private company.

Note:

Authority cited:
Sections 40502, 43040, and 43601.5, Public Resources Code.

References: 
Sections 43040, 43103, and 43500 - 43610.1, Public Resources Code, Part 258.74(f) and (h), Title 40 Code of Federal Regulations.

(a) An operator may satisfy the requirements of this Chapter by establishing more than one financial mechanism per disposal facility. The mechanisms must be as specified in Article 2 of this Subchapter, 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 coverage requirement of Subchapter 2.

Note:

Authority cited:
Sections 40502, Public Resources Code.

Reference:
Sections 43103 and 43500 - 43610, Public Resources Code.

(a) An operator may use one or more of the financial assurance mechanisms specified in Article 2 of this Subchapter, to provide financial assurance for more than one disposal facility. The amount of funds provided shall be no less than the sum of funds that would be available if a separate mechanism had been established and maintained for each disposal facility. In directing funds for designated activities of any of the disposal facilities covered by the mechanism(s), only the amount of funds designated for that activity at that disposal facility may be used.

Note:

Authority cited: 
Section 40502, Public Resources Code.

Reference:
Sections 43103 and 43500 - 43610, Public Resources Code.

(a) Except as otherwise provided in Section 22232, a provider of financial assurance may cancel or not renew a financial assurance mechanism by sending a notice of termination by certified mail to the operator, and the CIWMB.

(1) Termination of a letter of credit, a surety bond, an insurance policy, or a guarantee shall not occur until 120 days after the date on which the operator, and the CIWMB have received the notice of termination, as evidenced by the return receipts.

(2) If a provider of financial assurance cancels or fails to renew a mechanism for reasons other than its bankruptcy or incapacity, the operator shall obtain alternate coverage within 60 days after receiving the notice of termination. If the operator fails to obtain alternate coverage within the 60 days, the operator shall notify the CIWMB of such failure.

(b) The closure and/or postclosure maintenance and/or reasonably foreseeable corrective action costs insurance policy, issued in accordance with Section 22248, shall 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 shall, 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 cancel the policy by sending notice of cancellation by certified mail to the operator, and the CIWMB 120 days in advance of cancellation. If the insurer cancels the policy, the operator must obtain alternate financial assurance as specified in Section 22228. If the operator fails to demonstrate alternate financial assurance as specified in Section 22228 within 60 days after receiving the notice of termination, the CIWMB may allow the insurer an extension to the term of the insurance policy for a period of time shorter than one year. Cancellation, termination, or failure to renew will not occur and the policy will remain in full force and effect in the event that on or before the date of expiration:

(1) The CIWMB or enforcement agency deems the disposal facility abandoned; or

(2) The permit is terminated or revoked or a new permit is denied by the CIWMB or enforcement agency; or

(3) Closure is ordered by the CIWMB, or any other state or federal agency, or a court of competent jurisdiction; or

(4) The operator is named as a debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy) U.S. Code; or

(5) All delinquent premium payments have been brought current.

(c) Cancellation or nonrenewal of third party operating liability insurance or self-insurance and risk management for third party operating liability coverage shall occur no less than 60 days after the date on which the operator, and the CIWMB have received the notice of termination, as evidenced by the return receipts; except in the case of non-payment of insurance premiums, in which case cancellation shall occur no less than 10 days after the date on which the operator, and the CIWMB have received the notice of termination.

Note:

Authority cited:
Sections 40502 and 43040, Public Resources Code.

Reference:
Sections 43040, 43103 and 43500-43610, Public Resources Code.

(a) Within 10 days after commencement of a voluntary or involuntary proceeding under the Bankruptcy Code, Title 11 U.S.C. sections 101-1330 in which:

(1) The operator is named as debtor, the operator shall notify the CIWMB by certified mail of such commencement.

(2) A provider of financial assurance is named as debtor, such provider shall notify the operator, and the CIWMB certified mail of such commencement.

(b) An operator shall be deemed to be without the required financial assurance in the event of bankruptcy of its provider of financial assurance, or in the event of a suspension or revocation of the authority of the provider of financial assurance to issue a mechanism. If such an event occurs, the operator shall demonstrate alternate financial assurance as specified in this Article within 60 days after receiving notice of the event. If the operator fails to obtain alternate financial assurance within 60 days, the operator shall notify the CIWMB within 10 days of such failure.

Note:

Authority cited:
Sections 40502 and 43040, Public Resources Code.

Reference: 
Sections 43040, 43103 and 43500-43610, Public Resources Code.

(a) An operator shall maintain evidence of all financial assurance mechanisms until the operator is released from the requirements as specified in Section 22235. This evidence shall be maintained at each disposal facility, whenever possible, or at an alternate, designated location approved by the CIWMB and which is accessible to the operator, and available for CIWMB staff review.

(b) An operator shall maintain the following types of evidence, and an original or copy of each mechanism used to demonstrate financial responsibility under this Chapter and documentation of the estimated total permitted capacity of the solid waste landfill.

(1) Trust Fund. An operator using a trust fund shall maintain documentation of the remaining capacity filled during the past year for each disposal facility covered by the fund for each year of the buildup period and a copy of the trust agreement and statements verifying the current balance of the fund.

(2) Enterprise Fund. An operator using an enterprise fund shall maintain documentation of the remaining capacity filled during the past year for each disposal facility covered by the fund for each year of the buildup period and a copy of the following:

(A) All official resolutions, forms, letters, or other pertinent documents generated to establish the fund;

(B) The annual financial statements of the fund; and

(C) With respect to the financial assurance mechanism into which enterprise fund revenue is deposited:

1. Identify the disposal facilities and the current closure and/or postclosure costs estimate(s) and/or third party operating liability coverage requirement and/or corrective action cost estimate(s) covered by the mechanism;

2. Include a letter from an authorized officer of the institution maintaining the mechanism identifying the amount of coverage provided by the mechanism as of the date of its establishment and each anniversary date of establishment; and

3. Include a copy of the evidence documenting that the mechanism meets the requirements of Section 22241.

(3) Government Securities. An operator using government securities shall maintain a copy of the following:

(A) All official resolutions, forms, letters, or other pertinent documents generated to issue the securities;

(B) The terms of issuance of the securities; and

(C) With respect to the mechanism into which the funds generated by the issuance are deposited, the information listed in Section 22233(b)(2)(C)1, 2 and 3.

(4) Pledge of Revenue Agreement. An operator using a pledge of revenue shall do both of the following:

(A) Maintain a copy of the following:

1. All official resolutions, forms, letters, and other pertinent documentation generated to authorize the pledge of revenue;

2. The agreement between the CIWMB and the operator or provider of financial assurance as specified in Section 22245; and

3. Documentation that the pledged revenue will be available in a timely manner to pay postclosure maintenance costs.

(B) Submit to the CIWMB, at least annually in conjunction with the adjustment of cost estimates pursuant to Section 22236, a demonstration that the pledge is still in effect.

(5) Financial Means Test. An operator using a financial means test shall maintain a copy of the information specified in Section 22246.

(6) Guarantee. An operator using a guarantee shall maintain documentation of the guarantor's qualifications for providing a guarantee under Section 22246 and Section 22247.

(7) Closure and/or Postclosure Maintenance and/or Reasonably Foreseeable Corrective Action Costs Insurance. An operator using closure and/or postclosure maintenance and/or reasonably foreseeable corrective action costs insurance shall maintain a copy of the insurance certificate submitted to the CIWMB, the insurance policy and any endorsements thereon.

(8) Operating Liability Insurance. An operator using third party operating liability insurance shall maintain the original or a copy of the insurance policy in addition to the original or a copy of the liability insurance endorsement or the certificate of liability insurance.

(9) Self-Insurance and Risk Management. An operator using self-insurance and risk management shall maintain:

(A) The name and qualifications of the currently employed risk manager;

(B) Pertinent documents verifying the ongoing activity of the operator's safety and loss prevention program; and

(C) Pertinent documents showing procedures for timely investigation and resolution of any claims for third party damages caused by accidental occurrences and other self-insured losses.

(10) Insurance and Environmental Fund. An operator using the insurance and environmental fund shall maintain the original or a copy of the comprehensive general liability insurance coverage certification and a copy of the environmental liability fund agreement and statements verifying the current balance of the environmental liability fund. If self-insurance and risk management is utilized for the insurance coverage, documentation shall be maintained as identified in (9).

(11) Local Government Financial Test. An operator using a local government financial test shall maintain a copy of the information specified in Section 22249.

(12) Local Government Guarantee. An operator using a guarantee shall maintain documentation of the guarantor's qualifications for providing a guarantee under Section 22249 and Section 22249.5.

(c) An operator shall submit the documentation of current evidence of financial responsibility listed in (b) to the CIWMB whenever a financial assurance mechanism is established or amended or canceled or not renewed for any reason:

(1) In the case of a trust fund such documentation shall include the original mechanism and a copy of the current statement verifying the balance of the account;

(2) In the case of government securities such documentation shall include the information as specified in (b)(3);

(3) In the case of a letter of credit, surety bond, financial means test, or guarantee, such documentation shall include the original mechanism and all amendments;

(4) In the case of closure and/or postclosure maintenance and/or reasonably foreseeable corrective action costs insurance, or insurance or self-insurance and risk management for third party operating liability coverage, such documentation shall include the original insurance endorsement, certificate of insurance, certificate of self-insurance and risk management, and any endorsements thereon;

(5) In the case of the insurance and environmental liability fund, the insurance or self-insurance and risk management documentation shall include the original certification of comprehensive general liability insurance, or certification of self-insurance and risk management. The documentation for the environmental liability fund shall include the original environmental liability fund agreement and a copy of the current statement verifying the balance of the account, as specified in Section 22253.

(d) An operator shall annually submit written notice to the CIWMB of the number of claims paid and the total dollar amount paid as a result of any accidental occurrences at the disposal facility. This information shall be compiled for the previous calendar year and submitted to the CIWMB by March 1st of each year.

Note:

Authority cited:
Sections 40502, 43040, and 43601.5, Public Resources Code.

References:
Sections 43040, 43103, and 43500 through 43610.1, Public Resources Code, 
Part 258.74(f) and (h), Title 40 Code of Federal Regulations.

(a) The operator, or other person authorized to conduct closure, postclosure maintenance, or corrective action activities may request disbursements from the CIWMB for these expenditures in advance of the activities or as reimbursement for activities completed. Requests for disbursement will be granted by the CIWMB only if:

(1) Sufficient funds are remaining in the financial mechanism(s) to cover the remaining costs of closure, postclosure maintenance, or corrective action; and

(2) Justification and documentation of the cost is presented to the CIWMB for review and approval in conjunction with approved final closure and postclosure maintenance plans, or an approved corrective action plan.

(b) The CIWMB shall authorize disbursements from an established closure or postclosure maintenance financial assurance mechanism to the RWQCB for the costs of closure or postclosure maintenance if the RWQCB finds that the operator has failed to perform closure or postclosure maintenance as required by the closure plan or postclosure maintenance plan as approved by the RWQCB and the CIWMB, or as required by an Order issued by the RWQCB, including Waste Discharge Requirements (WDRs), Cease and Desist Orders (CDOs), and/or Cleanup and Abatement Orders (CAOs).

(c) The CIWMB shall authorize disbursements from an established corrective action financial assurance mechanism to the RWQCB for the costs of corrective action if the RWQCB finds that the operator has failed to perform corrective action as required by the corrective action workplan as approved by the RWQCB and the CIWMB, or as required by an Order issued by the RWQCB, including WDRs, CDOs, and/or CAOs.

Note:

Authority cited:
Section 40502, Public Resources Code.

Reference:
Sections 43103, 43500 - 43610, Public Resources Code; Title 40, Code of Federal Regulations, Section 258.74(a)(7).

(a) After receiving and approving certification of closure from the operator as specified by Section 21880, the CIWMB shall notify the operator and the provider of financial assurance in writing, that he or she is no longer required to demonstrate financial responsibility for closure and third party operating liability claims, pursuant to this Chapter, at the particular disposal facility pursuant to this Article.

(b) When operational control of a disposal facility is transferred, the existing operator shall remain subject to the requirements of this Chapter until the new operator provides acceptable financial assurances to the CIWMB.

(c) When the CIWMB determines that an operator has completed postclosure maintenance in accordance with the applicable postclosure plan, the CIWMB shall notify the operator in writing that it is no longer required to maintain financial assurance for postclosure maintenance of the particular solid waste landfill pursuant to this Chapter.

(d) When the CIWMB releases an operator that is using a trust fund or a similar financial assurance mechanism in conjunction with an enterprise fund or government securities from the requirements of this Chapter, the CIWMB shall authorize the termination of the trust fund or the similar mechanism.

Note:

Authority cited:
Section 40502 and 43040, Public Resources Code.

Reference:
Sections 43040, 43103 and 43500-43610, Public Resources Code.

The operator shall submit, by June 1 of each year, a report calculating the increase in the cost estimates for closure and/or postclosure maintenance and/or corrective action due to the inflation factor for the previous calendar year. The inflation factor is derived from the annual Implicit Price Deflator for Gross National Product as published annually by the U.S. Department of Commerce in its Survey of Current Business, which is incorporated by reference. The inflation factor is the result of dividing the latest annual published deflator by the deflator for the previous year. The operator shall increase the monetary amount of the financial mechanism required under this Chapter based upon this inflation factor. The mechanism may not be decreased other than as a result of the closure and/or postclosure maintenance and/or corrective action plan amendment process.

Note:

Authority cited:
Section 40502, Public Resources Code.

Reference:
Sections 43103 and 43501, Public Resources Code.

(a) The CIWMB may require an operator using a letter of credit, a surety bond, or, as applicable, a financial assurance mechanism used in conjunction with an enterprise fund or with government securities, to establish a depository trust fund meeting the requirements of (c) if:

(1) The operator fails to demonstrate alternate financial assurance within 60 days after receiving notice of cancellation of the mechanism; or

(2) The operator fails to perform closure or postclosure maintenance or corrective action in accordance with the applicable approved closure or postclosure maintenance plan and permit requirements or corrective action requirements of Article 1, Subchapter 3, Chapter 3 (Section 20380 et seq.), when required to do so by the CIWMB or RWQCB and, in the case of a performance bond, the surety company fails to perform such activities on behalf of the operator.

(b) The CIWMB may require an institution issuing a letter of credit, a surety company, or, as applicable, a provider of a financial assurance mechanism used in conjunction with an enterprise fund or government securities to:

(1) Establish a depository trust fund meeting the requirements of (c) if the operator fails to establish a depository trust fund as required by (a); and

(2) Place into the depository trust fund an amount of funds, stipulated by the CIWMB, up to the limit of funds provided by the financial assurance mechanism.

(c) The depository trust fund shall meet the requirements of Section 22240.

(d) The CIWMB may draw on the depository trust fund as specified by the trust agreement.

(e) If, at any time, due to interest earned or over deposit, the value of the depository trust fund is greater than the required amount of coverage minus the amount of coverage demonstrated by other mechanisms, the provider of financial assurance that established the depository trust fund may request in writing that the CIWMB authorize the release of the excess funds. No later than 60 days after receiving such a request, the CIWMB will review the request and, if any excess funds are verified, will instruct the trustee to release the funds.

Note:

Authority cited:
Section 40502, Public Resources Code.

Reference:
Sections 43103, 43500-43610, Public Resources Code.

Last updated: May 05, 2008