Subchapter H. FINANCIAL REQUIREMENTS

 40 CFR 264.143 (relating to financial assurance for closure) is not incorporated by reference except for 40 CFR 264.143(f) as referenced in §  264a.156 (relating to special terms and conditions for collateral bonds and bonds pledging financial test or corporate guarantee for closure).

   The provisions of this §  264a.143 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

   The provisions of this §  264a.143 amended January 9, 2009, effective January 10, 2009, 39 Pa.B. 201. Immediately preceding text appears at serial page (254932).

 40 CFR 264.145 (relating to financial assurance for post-closure care) is not incorporated by reference; except for 40 CFR 264.145(f) as referenced in §  264a.156 (relating to special terms and conditions for collateral bonds and bonds pledging financial test or corporate guarantee for closure).

   The provisions of this §  264a.145 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

 (a)  Hazardous waste storage, treatment and disposal facilities permitted under the act, or being treated as having a permit under the act, shall file a bond in accordance with this subchapter and in the amount determined by §  264a.160 (relating to bond amount determination), payable to the Department.

 (b)  The Department will not issue a new, revised, amended, modified or renewed permit for the storage, treatment or disposal of hazardous waste unless the applicant files with the Department a bond under this subchapter, payable to the Department, on a form prepared and provided by the Department, and the bond is approved by the Department.

 (c)  An applicant for a new, revised, amended, modified or renewed permit may not disturb surface acreage, start construction of facilities for the storage, treatment or disposal of hazardous waste, or accept hazardous waste prior to receipt from the Department of approval of bond and issuance of a permit to conduct a hazardous waste storage, treatment or disposal operation.

 (d)  A hazardous waste storage, treatment or disposal facility permitted or treated as having a permit, shall cease accepting hazardous waste unless the owner or operator submits a bond under this subchapter. The Department will review and determine whether or not to approve the bond within 1 year of the submittal. If, on review, the Department determines the owner or operator submitted an insufficient bond amount, the Department will require the owner or operator to deposit additional bond amounts under §  264a.162 (relating to bond amount adjustments).

   The provisions of this §  264a.153 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

 (a)  The Department accepts the following types of bond:

   (1)  A surety bond.

   (2)  A collateral bond.

   (3)  A bond pledging a financial test or corporate guarantee.

   (4)  A phased deposit collateral bond as provided in §  264a.157 (relating to phased deposits of collateral).

 (b)  The Department will prescribe and furnish the forms which shall be used for bond instruments.

 (c)  Bonds are payable to the Department and conditioned upon the faithful performance of the requirements of the act, The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.4c, 1396.4e and 1396.15c—1396.25), the Air Pollution Control Act (35 P. S. § §  4001—4015), the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27), the regulations adopted thereunder, the terms and conditions of any permit issued thereunder, orders of the Department and amendments, revisions and changes to the acts, the regulations and the terms and conditions of the hazardous waste storage, treatment and disposal facility permit as may be lawfully made in the future.

 (d)  The bond must cover the hazardous waste storage, treatment or disposal operations from the initiation of the operations until the bond is released as provided in this chapter. The bond must cover all operations and activities conducted within the permitted area and all effects caused by the hazardous waste activities within or without the permit area. An owner or operator of a new facility shall submit the bond to the Department at least 60 days before the date that hazardous waste is first received for treatment, storage or disposal.

 (e)  Bonds will be reviewed for legality and form according to established Commonwealth procedures.

   The provisions of this §  264a.154 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

 (a)  The Department does not accept the bond of a surety company that failed or unduly delayed in making payment on a forfeited surety bond.

 (b)  The Department accepts only the bond of a surety authorized to do business in this Commonwealth and which is listed in Circular 570 of the United States Department of Treasury.

 (c)  The surety may cancel the bond by sending written notice of cancellation by certified mail to the owner or operator and the Department. Cancellation may not take effect until 120 days after receipt of the notice of cancellation by the principal and the Department, as evidenced by the return receipts. Within 60 days of receipt of the notice of cancellation, the owner or operator shall provide the Department with a replacement bond under §  264a.158 (relating to replacement of bond). Failure of the owner or operator to provide a replacement bond within the 60-day period constitutes grounds for forfeiture of the existing bond under §  264a.168 (relating to bond forfeiture).

 (d)  The Department does not accept surety bonds from a surety company for a owner or operator, on all facilities owned or operated by the owner or operator, in excess of the company’s single risk limit as provided by The Insurance Company Law of 1921 (40 P. S. § §  341—991), unless the surety has complied with the provisions of The Insurance Company Act of 1921 (40 P. S. § §  1—297.4) for accepting risk above its single risk limit.

 (e)  The bond shall provide that full payment will be made on the bond within 30 days of receipt of a notice of forfeiture by the surety, notwithstanding judicial or administrative appeal of the forfeiture, and that the amount is confessed to judgment upon forfeiture.

 (a)  The Department obtains possession and keeps custody of collateral deposited by the owner or operator until authorized for release or replacement as provided in this subchapter.

 (b)  The Department values governmental securities for both current market value and face value. For the purpose of establishing the value of the securities for bond deposit, the Department uses the lesser of current market value or face value. Government securities shall be rated at least BBB by Standard and Poor’s or Baa by Moody’s.

 (c)  Collateral bonds pledging Pennsylvania bank certificates of deposit are subject to the following conditions:

   (1)  The Department requires that certificates of deposit are assigned to the Department, in writing, and the assignment recorded upon the books of the issuing institution.

   (2)  The Department may accept an individual certificate of deposit for the maximum insurable amount as determined by the Federal Deposit Insurance Corporation (FDIC) and which is otherwise secured under Pennsylvania law.

   (3)  The Department requires the issuing institution to waive all rights of setoff or liens it has or might have against the certificates.

   (4)  The Department only accepts automatically-renewable certificates of deposit.

   (5)  The Department requires that the certificates of deposit be assigned to the Department to assure that the Department can liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond determined under this subchapter.

   (6)  The Department only accepts certificates of deposit from banks or banking institutions licensed, chartered or otherwise authorized to do business in the United States.

   (7)  The Department does not accept certificates of deposit from banks that failed or delayed in making payment on defaulted certificates of deposit.

 (d)  Collateral bonds pledging a bank letter of credit are subject to the following conditions:

   (1)  The letter of credit is a standby letter of credit issued only by a bank organized or authorized to do business in the United States, examined by a State or Federal agency and Federally insured or equivalently protected.

   (2)  The letter of credit may not be issued without a credit analysis substantially equivalent to that of a potential borrower in an ordinary loan situation. A letter of credit so issued shall be supported by the owner’s or operator’s unqualified obligation to reimburse the issuer for moneys paid under the letter of credit.

   (3)  The letter of credit may not be issued when the amount of the letter of credit, aggregated with other loans and credits extended to the owner or operator, exceeds the issuer legal lending limits for that owner or operator as defined in the United States Banking Code (12 U.S.C.A. § §  21—220).

   (4)  The letter of credit is irrevocable and is so designated. The Department may accept a letter of credit for at least a 1 year period if the following conditions are met and stated in the credit:

     (i)   The letter of credit is automatically renewable for additional time periods of at least 1 year, unless the bank gives at least 120 days prior written notice by certified mail to the Department and the customer of its intent to terminate the credit at the end of the current time period.

     (ii)   The Department has the right to draw upon the credit before the end of the time period, if the customer fails to replace the letter of credit with other acceptable bond guarantee within 30 days of the bank’s notice to terminate the credit.

   (5)  Letters of credit shall name the Department as the beneficiary and be payable to the Department, upon demand, in part or in full, upon presentation of the Department’s drafts at sight. The Department’s right to draw upon the letter of credit will not require documentary or other proof by the Department that the customer has violated the conditions of the bond, the permit or another requirement of this subchapter.

   (6)  Letters of credit are subject to 13 Pa.C.S. (relating to the Uniform Commercial Code) and the latest revision of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce. The Department may accept 13 Pa.C.S. Division 5 (relating to letters of credit) in effect in the state of the issuer.

   (7)  The issuing bank waives the rights to setoff or liens it has or might have against the letter of credit.

   (8)  The Department will not accept letters of credit from a bank that failed or delayed in making payment on a letter of credit previously submitted as collateral to the Department.

 (e)  Bonds pledging a financial test or corporate guarantee for closure shall be subject to the requirements of 40 CFR 264.143(f) (relating to financial test and corporate guarantee for closure) and 40 CFR 264.145(f) (relating to financial assurance for post-closure care). Instead of the provisions of 40 CFR 264.143(f)(10)(i) (relating to financial assurance for closure) and 40 CFR 264.145(f)(11)(i), the procedures of §  264a.168 (relating to bond forfeiture), apply to bond forfeiture.

   The provisions of this §  264a.156 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

   The provisions of this §  264a.156 amended January 9, 2009, effective January 10, 2009, 39 Pa.B. 201. Immediately preceding text appears at serial pages (254935) to (254937).

 (a)  An owner or operator may post a collateral bond in phased deposits for a new hazardous waste storage, treatment or disposal facility that will be continuously operated or used for at least 10 years from the date of issuance of the permit or permit amendment, according to all of the following requirements:

   (1)  The owner or operator submits a collateral bond form to the Department.

   (2)  The owner or operator deposits $10,000 or 25%, whichever is greater, of the total amount of bond determined in this chapter in approved collateral with the Department.

   (3)  The owner or operator submits a schedule agreeing to deposit 10% of the remaining amount of bond, in approved collateral in each of the next 10 years.

 (b)  The owner or operator deposits the full amount of bond required for the hazardous waste storage, treatment or disposal facility within 30 days of receipt of a written demand by the Department to accelerate deposit of the bond. The Department will make the demand when one of the following occurs:

   (1)  The owner or operator fails to make a deposit of bond amount when required by the schedule for the deposits.

   (2)  The owner or operator violates the requirements of the act, this article, the terms and conditions of the permit or orders of the Department and has failed to correct the violations within the time required for the correction.

 (c)  Interest earned by collateral on deposit accumulates and becomes part of the bond amount until the owner or operator completes deposit of the requisite bond amount in accordance with the schedule of deposit. Interest so accumulated may not offset or diminish the amount required to be deposited in each of the succeeding years set forth in the schedule of deposit, except that in the last year in which a deposit is due, the amount to be deposited is adjusted by applying the total accumulated interest to the amount to be deposited as established by the schedule of deposit.

   The provisions of this §  264a.157 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

   The provisions of this §  264a.157 amended January 9, 2009, effective January 10, 2009, 39 Pa.B. 201. Immediately preceding text appears at serial page (254937).

 (a)  The Department may allow an owner or operator to replace existing surety or collateral bonds with other surety or collateral bonds if the liability accrued against the owner or operator of the hazardous waste storage, treatment or disposal facility is transferred to the replacement bonds. The bond amount for the replacement bond is determined under this chapter, but in no case may it be less than the amount on deposit with the Department.

 (b)  The Department will not release existing bonds until the owner or operator submits and the Department approves acceptable replacement bonds. A replacement of bonds under this section may not constitute a release of bond under this subchapter.

 (c)  Within 60 days of approval of acceptable replacement bonds, the Department will take appropriate action to initiate the release of existing surety or collateral bonds being replaced by the owner or operator.

 (a)  The Department determines bond amount requirements for each hazardous waste storage, treatment and disposal facility based upon the total estimated cost to the Commonwealth to complete final closure of the facility. This is done in accordance with the requirements of applicable statutes, this article, the terms and conditions of the permit and orders issued thereunder by the Department and to take measures that are necessary to prevent adverse effects upon the environment during the life of the facility and after closure until released as provided by this subchapter.

 (b)  This amount is based on the permit applicant’s written estimate submitted under 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and cost estimate for post-closure care).

 The owner or operator shall deposit additional amounts of bond within 60 days of any of the following:

   (1)  The permit is amended to increase acreage, to change the kind of waste handled or for another reason that requires an additional amount of bond determined under 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and cost estimate for post-closure care).

   (2)  Inflationary cost factors exceed the estimate used for the original bond amount determination under 40 CFR 264.142 and 264.144.

   (3)  The permit is to be renewed or reissued, or the bond on deposit is to be replaced, requiring an additional amount of bond determined under 40 CFR 264.142 and 264.144.

   (4)  An additional amount of bond is required as determined by 40 CFR 264.142 and 264.144 to meet the requirements of applicable statutes, this subchapter and the terms and conditions of the permit or orders of the Department.

 (a)  The Department may require a separate bond to be posted for a part of a hazardous waste storage, treatment or disposal facility if that part of the facility can be separated and identified from the remainder of the facility and the bond liability for that part will continue beyond the time provided for the remainder of the facility, or the Department determines that separate bonding of the facility is necessary to administer and apply applicable statutes, this article, the terms and conditions of the permit or orders of the Department.

 (b)  If the Department requires a separate bond for part of a facility, the original bond amount for the facility may be adjusted under §  264a.162 (relating to bond amount adjustments).

 (a)  The owner or operator may file a written application with the Department requesting release of all or part of the bond amount posted for a hazardous waste storage, treatment or disposal facility. The bond release may be requested during the operation of the facility as part of a request for bond adjustment under §  264a.162 (relating to bond amount adjustments); upon completion of closure for a storage or treatment facility and upon expiration of the postclosure care period of liability, for a disposal facility as specified in 40 CFR Part 264, Subpart G (relating to closure and postclosure care).

 (b)  The application for bond release shall contain all of the following:

   (1)  The name of the owner or operator and identify the hazardous waste storage, treatment or disposal facility for which bond release is sought.

   (2)  The total amount of bond in effect for the facility and the amount for which release is sought.

   (3)  The reasons why, in specific detail, bond release is requested including, but not limited to, the closure, postclosure care and abatement measures taken, the permit amendments authorized or the change in facts or assumptions made during the bond amount determination which demonstrate and would authorize a release of part or all of the bond deposited for the facility.

   (4)  A revised cost estimate for closure and postclosure care in accordance with 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and postclosure care).

   (5)  Closure or postclosure certification for full bond release requests.

   (6)  Other information required by the Department.

 (c)  The Department will evaluate the bond release request as if it were a request for a new bond amount determination under 40 CFR 264.142 and 264.144. If the new bond amount determination would require less bond for the facility than the amount already on deposit, the Department will release the por tion of the bond amount which is not required for the facility. If the new bond amount determination would require an additional amount of bond for the facility, the Department will require the additional amount to be deposited for the facility.

 (d)  The Department will not release a bond amount deposited for a facility if the release would reduce the total remaining amount of bond to an amount which would be insufficient for the Department to complete closure and postclosure care and to take measures that may be necessary to prevent adverse effects upon the environment or public health, safety or welfare in accordance with applicable statutes, this chapter, the terms and conditions of the permits and orders of the Department.

 (e)  The Department will make a decision on a bond release application within 6 months of receipt unless additional time is authorized by the owner or operator.

 (a)  The owner or operator shall submit a request for closure or postclosure certification upon completion of closure or postclosure of the facility in accordance with 40 CFR 264.115 or 264.120 (relating to certification of closure; and certification of completion of postclosure care).

 (b)  Within 60 days after receipt of a written request for closure or postclosure certification, the Department will initiate an inspection of the facility to verify that closure or postclosure was effected in accordance with the approved facility closure or postclosure care plan and this article.

 (c)  If the Department determines that the facility closed in accordance with this article, and that there is no reasonable expectation of adverse effects upon the environment or the public health, safety and welfare, the Department will certify in writing to the owner or operator that closure or postclosure was effected in accordance with this subchapter. Closure or postclosure certification may not take effect until 1 year after receipt of the Department’s determination.

 (d)  The closure or postclosure certification does not constitute a waiver or release of bond liability or other liability existing in law for adverse environmental conditions or conditions of noncompliance existing at the time of the notice or which might occur at a future time, for which the owner or operator shall remain liable.

 (e)  The Department will not issue a closure or postclosure certification for a facility causing adverse effects on the public health, safety or welfare or the environment, creating a public nuisance, or in violation of this article, the act or the statutes in section 505(a) of the act (35 P. S. §  6018.505(a)).

 (f)  At any time after issuance of a certification of closure or postclosure, if inspection by the Department indicates that additional postclosure care measures are required to abate or prevent any adverse effects upon the environment or the public health, safety and welfare, the Department will issue a written notice to the owner or operator setting forth the schedule of measures the owner or operator shall take in order to bring the facility into compliance.

 (g)  At least 6 months prior to expiration of the 1 year liability period following closure and postclosure care, the Department will conduct an inspection of the facility. If the Department determines that the facility will continue to cause adverse effects upon the environment or the public health, safety and welfare after expiration of the 1-year liability period, the Department will require the owner or operator to deposit a separate bond under §  264a.164 (relating to separate bonding for a portion of a facility), or forfeit the bond under §  264a.168 (relating to bond forfeiture) on deposit with the Department.

 (a)  The Department will forfeit the bond for a hazardous waste storage, treatment or disposal facility if the Department determines that any of the following occur:

   (1)  The owner or operator fails and continues to fail to conduct the hazardous waste storage, treatment or disposal activities in accordance with this article, the act, the statutes in section 505(a) of the act (35 P. S. §  6018.505(a)), the terms and conditions of the permit or orders of the Department.

   (2)  The owner or operator abandons the facility without providing closure or postclosure care, or otherwise fails to properly close the facility in accordance with the requirements of this article, the act, section 505(a) of the act, the terms and conditions of the permit or orders of the Department.

   (3)  The owner or operator fails, and continues to fail to take those measures determined necessary by the Department to prevent effects upon the environment before, during and after closure and postclosure care.

   (4)  The owner or operator or financial institution becomes insolvent, fails in business, is adjudicated bankrupt, a delinquency proceeding is initiated under Article V of The Insurance Department Act of 1921 (40 P. S. § §  221.1—221.63), files a petition in bankruptcy, in liquidation, for dissolution or for a receiver, or has a receiver appointed by the court, or has action initiated to suspend, revoke or refuse to renew the license or certificate of authority of the financial institution, or a creditor of the owner or operator attaches or executes a judgment against the owner’s or operator’s equipment, materials or facilities at the permit area or on the collateral pledged to the Department; and the owner or operator or financial institution cannot demonstrate or prove the ability to continue to operate in compliance with this article, the act, the statutes in section 505(a) of the act, the terms and conditions of the permit and orders of the Department.

 (b)  If the Department determines that bond forfeiture is appropriate, the Department will do the following:

   (1)  Send written notification by mail to the owner or operator, the host municipality and the surety on the bond, if any, of the Department’s determination to forfeit the bond and the reasons for the forfeiture.

   (2)  Advise the owner or operator and surety, if any, of their right to appeal to the EHB under section 1921-A of The Administrative Code of 1929 (71 P. S. §  510-21).

   (3)  Proceed to collect on the bond as provided by applicable statutes for the collection of defaulted bonds or other debts.

   (4)  Deposit all money collected from defaulted bonds into the Solid Waste Abatement Fund. Use moneys received from the forfeiture of bonds, and interest accrued, first to accomplish final closure of, and to take steps necessary and proper to remedy and prevent adverse environmental effects from, the facility upon which liability was charged on the bonds. Excess moneys may be used for other purposes consistent with the Solid Waste Abatement Fund and the act.

   (5)  Forfeit all bond deposited for the facility, including all additional amounts of bond posted for the facility.

   The provisions of this §  264a.168 amended under sections 105, 402 and 501 of the Solid Waste Management Act (35 P. S. § §  6018.105, 6018.402 and 6018.501); sections 303 and 305(e)(2) of the Hazardous Sites Cleanup Act (35 P. S. § §  6020.303 and 6020.305(e)(2)); section 5, 402 and 501 of The Clean Streams Law (35 P. S. § §  691.5, 691.402 and 691.501); and section 1920-A of The Administrative Code of 1929 (71 P. S. § §  510-20).

   The provisions of this §  264a.168 amended January 9, 2009, effective January 10, 2009, 39 Pa.B. 201. Immediately preceding text appears at serial pages (254942) and (294519).

 Remedies provided or authorized by law for violation of statutes, including but not limited to, the act, The Clean Streams Law (35 P. S. § §  691.1—691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. § §  1396.1—1396.19a), the Air Pollution Control Act (35 P. S. § §  4001—4015), the Dam Safety and Encroachments Act (32 P. S. § §  693.1—693.27), this article and the terms and conditions of permits and orders of the Department, are expressly preserved. Nothing in this chapter may be construed as an exclusive penalty or remedy for the violations. An action taken under this subchapter may not waive or impair another remedy or penalty provided in law.