Subchapter B. HOST COUNTIES

§ 272.101. County withdrawals from trust fund.

 The trustee of a site-specific postclosure trust established under section 1108 of the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §  4000.1108) may release moneys from the trust to the county which established the trust upon written request from the county to the trustee in accordance with the Environmental Stewardship and Watershed Protection Act.

 (a)  A trust fund established under section 1108 of the Municipal Waste Planning, Recycling and Waste Reduction Act (53 P. S. §  4000.1108) shall meet the following requirements:

   (1)  The trustee shall be a state-chartered or National bank, or financial institution with trust powers or trust company with offices in this Commonwealth and whose trust activities are examined or regulated by a state or Federal agency. The trustee shall have an office located in the county establishing the trust fund.

     (i)   The trustee may resign by sending written notice to the Department, the county and the operator of the municipal waste landfill, by certified mail, return receipt requested, of its intention to resign. The resignation may not take effect until the following conditions have been met:

       (A)   The expiraiton of a 120-day period after the trustee has provided written notice of its intention to resign.

       (B)   The county has appointed a successor trustee and the successor trustee accepts the appointment.

     (ii)   If the county fails to appoint a successor trustee or a successor trustee fails to accept the appointment at the expiration of the 120-day period, the trustee may apply to a court of competent jurisdiction for instructions.

   (2)  The trust shall provide that the operator of the municipal waste landfill and the Department are co-beneficiaries under the trust. The trust may not be subject to assignment, alienation, pledge, attachment, garnishment, sequestration, other legal process or to the claims of creditors.

   (3)  The trust shall be irrevocable.

   (4)  The corpus of the trust fund shall consist of moneys paid by the operator of the municipal waste landfill for waste received at the landfill until January 1, 2000, under former section 1108(c) of the Municipal Waste Planning, Recycling and Waste Reduction Act. The payments are computed on the basis of 25¢ per ton, or part thereof, of weighed waste or 25¢ per 3 cubic yards, or part thereof, of measured waste for solid waste received at the landfill for the quarter for which payment was due to be made.

   (5)  The trustee shall send the Department, in writing on a quarterly basis, a statement of the trust account transactions.

 (b)  The trustee is authorized to invest and reinvest the principal and income of the trust fund and keep the fund invested as a single fund, without distinction between principal and income. In investing, reinvesting and otherwise managing the trust fund, the trustee shall discharge its duties solely in the interest of the beneficiaries. The trustee shall manage the trust fund with that degree of judgement, skill and care under the circumstances then prevailing which persons of prudence, discretion and intelligence, who are familiar with these matters, exercise in the management of their own affairs not in regard to speculation, but in regard to the permanent disposition of the funds, considering the probable income to be derived therefrom as well as the probable safety of their capital.

 (c)  For the purposes of investing or reinvesting the moneys in the trust fund, the trustee is authorized to:

   (1)  Purchase United States Treasury Bills.

   (2)  Purchase short-term obligations of the United States Government or its agencies or instrumentalities.

   (3)  Purchase obligations of the United States or of its agencies or instrumentalities backed by the full faith and credit of the United States.

   (4)  Purchase obligations of the Commonwealth or its agencies or instrumentalities backed by the full faith and credit of the Commonwealth.

   (5)  Purchase obligations of a political subdivision of this Commonwealth or its agencies or instrumentalities backed by the full faith and credit of the political subdivision.

   (6)  Purchase shares of an investment company registered under the Investment Company Act of 1940 (15 U.S.C.A. § §  80a-1—80a64), whose shares are registered under the Securities Act of 1933 (15 U.S.C.A. § §  77a—77aa) if the only investments of the investment company are those described in this subsection.

   (7)  Time or demand deposits of the trustee to the extent insured by an agency of the Federal or State Government.

 (d)  Additional options of the trustee are listed in this subsection.

   (1)  The trustee may purchase commercial paper and prime commercial paper defined as follows:

     (i)   Commercial paper means unsecured promissory notes issued at a discount from par by an industrial, common carrier, public utility or finance company.

     (ii)   Prime commercial paper means notes issued by corporations whose credit has been approved by the National Credit Office, Inc., New York, or its successor.

   (2)  The trustee may not purchase commercial paper without first obtaining the following:

     (i)   Certification or other evidence the commercial paper is rated prime by the National Credit Office, Inc., or its successor.

     (ii)   Certification or other evidence the commercial paper proposed to be delivered is not subordinate to another debt of the issuer.

     (iii)   Certification or other evidence there is no litigation pending or threatened that would affect the commercial paper.

     (iv)   Certification or other evidence that the issuer is not in default as to payment of principal and interest on one or more of its outstanding obligations.

     (v)   Certification or other evidence the issuer is incorporated in the United States, is transacting business within the United States and has assets of $1 billion or more, or is a wholly owned subsidiary of a Pennsylvania corporation which has assets of $1 billion or more.

 (e)  The trustee is authorized to hold cash awaiting investment or distribution for a reasonable period of time without liability for the payment of interest thereon.

 (f)  The trustee shall annually, at least 30 days prior to the anniversary date of the establishment of the trust fund, furnish to the operator, the county and the Department a statement confirming the value of the trust fund, and the dates and amounts of any payments into the trust from the landfill and withdrawals for administration or a purpose other than investment or reinvestment. The trustee shall value securities in the trust fund at the lesser of market or par value as of no more than 60 days prior to the anniversary date.

   The provisions of this §  272.102 amended December 22, 2000, effective December 23, 2000, 30 Pa.B. 6685. Immediately preceding text appears at serial pages (226096) to (226099).

 Under §  272.102(a)(5) (relating to trust requirements), if the trustee notifies the Department that a payment due from the operator of the municipal waste landfill has not been received by the trustee, the Department will immediately, in writing, notify the operator that it shall pay to the trustee the payment due within 15 days of the Department’s notification. If the operator fails or refuses to pay to the trustee the payment at the expiration of the 15-day period, the Department will proceed or the trustee may proceed to collect the payment in a manner provided by law.

 (a)  Withdrawals by the operator may not be made from the trust fund prior to certification by the Department of the closure of the landfill under §  273.203(d) (relating to certification). The Department will provide the trustee with a copy of the certification of closure.

 (b)  The trustee shall withdraw and pay over moneys from the trust fund to the operator only upon receipt of a written request of the operator. The trustee may not honor the written request of an operator unless the request has been approved by the Department. A payment from the trust to the operator may only be made for remedial measures and emergency actions required by the Department for prevention or abatement of adverse effects on the environment.

 (c)  Written requests by the operator to the Department for approval of withdrawal of moneys from the trust shall include the following:

   (1)  The name of the operator and the identification of the facility for which withdrawal is sought.

   (2)  The date of closure of the facility.

   (3)  The closure plan for the facility under §  271.113 or §  273.192 (relating to closure plan; and closure plan), or the date the closure plan was previously submitted to the Department or approved by the Department.

   (4)  The total amount of the trust corpus, the amount of the withdrawal request and the amount that will remain in trust.

   (5)  A revised cost estimate for closure and postclosure care under §  271.331 (relating to bond and trust amount determination).

   (6)  A demonstration that the operator has inadequate financial resources to perform the remedial measures or emergency actions for which it is requesting the withdrawal and that the bond issued under the act has been exhausted.

 (d)  Written requests made by the operator to the trustee to withdraw and pay over moneys from the trust fund shall include the following:

   (1)  The amount requested to be withdrawn.

   (2)  The purpose of the withdrawal.

   (3)  A copy of the Department’s written approval.

 (e)  When the operator makes a request to the Department for approval of a withdrawal from the trust, the operator shall immediately provide a copy of the request to the county and to the municipality in which the landfill is located. When a written request to withdraw and pay over moneys from the trust fund is received by the trustee, the trustee shall immediately provide a copy of the request to the county and to the municipality in which the landfill is located.

 (f)  After the trustee receives notification of certification of closure from the Department, the trustee shall release moneys from a trust for a municipal waste landfill that operated prior to April 9, 1988, and closed shortly thereafter, if the landfill has no closure bond or a closure bond of less than $10,000 and has not been abandoned for the following postclosure activities, upon written request by the landfill operator and written approval by the Department:

   (1)  Placement of wells for water quality monitoring.

   (2)  Placement of gas control devices for gas monitoring.

   (3)  Placement of leachate collection and treatment system.

   (4)  Erosion and sedimentation control.

   (5)  Revegetation and regrading including maintenance of final cover.

   (6)  Access control.

   (7)  Other postclosure activities.

 (g)  The trustee, immediately on preparation, shall provide a copy of a document effectuating a withdrawal from the trust fund by the operator to the county, the municipality in which the landfill is located and the Department.

 (a)  The county may request the trustee to withdraw and pay over to the county moneys as may be necessary to reimburse the county for actual costs incurred by the county in administering the trust fund. The county shall provide documentation necessary to satisfy the trustee that the county’s request accurately sets forth the actual costs incurred by the county.

 (b)  Payments to the county for costs incurred in administering the trust fund may not exceed the lesser of the county’s actual costs, or 0.5% of the moneys in the trust fund (including the trust corpus, earnings and profits) on the date of the county’s request for payment.

 (c)  After the trustee receives a copy of certification of closure from the Department, payments to the county for costs incurred in administering the trust may not exceed the lowest of the county’s actual costs, 0.5% of the moneys in the trust fund (including the trust corpus, earnings and profits) or the earnings and profits from the trust corpus credited during the billing period.

 (a)  The Department will notify the trustee, in writing, of the Department’s certification of final closure of the landfill under §  271.342 (relating to final closure certification) and one of the following:

   (1)  The release of the bond.

   (2)  The termination of a trust provided for a landfill operated by a municipality solely for municipal waste not classified hazardous, if the municipality has provided the trust in lieu of a bond under §  271.301(c) (relating to scope).

 (b)  Upon receipt of the notification required in subsection (a), the trustee shall take the necessary steps to terminate the trust.

 (c)  Upon termination of the trust fund, the remaining trust property, less final trust administration expenses of the trustee, shall be given to the county that established the trust for use in a manner consistent with the Environmental Stewardship and Watershed Protection Act.

 (d)  A trustee may take the necessary steps to terminate a trust at any time prior to the time stated in subsection (a) if all of the moneys have been withdrawn and paid out in accordance with this subchapter.

 (a)  The Department will certify to the trustee, in writing, the abandonment of the landfill by the operator, or the failure or refusal of the operator to comply with the requirements of the act, the environmental protection acts, regulations thereunder, the terms and conditions of the permit or orders of the Department. The Department will not make the certification sooner than 30 days after the Department has provided written notice to the operator, the county and the trustee of the Department’s intention to make the certification.

 (b)  Upon the trustee’s receipt of the certification, rights, title and interest in the property of the trust will be vested in the Department. The Department may direct the trustee to make disbursements from the trust fund necessary to prevent or abate adverse effects in the environment, or direct the trustee to take the necessary steps to terminate the trust and pay to the Department moneys remaining in the trust together with other property in the trust, less the trustee’s final administration expenses. This amount shall be paid into the Solid Waste Abatement Fund, to be used solely for abatement, remediation, closure, postclosure care, monitoring and related costs for that particular landfill.