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This entry was published on 2014-09-22
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SECTION 27-0917
Financial requirements for hazardous waste facilities
Environmental Conservation (ENV) CHAPTER 43-B, ARTICLE 27, TITLE 9
§ 27-0917. Financial requirements for hazardous waste facilities.

1. Within eighteen months after the effective date of this section,
the commissioner shall promulgate regulations for hazardous waste
facilities identifying financial requirements to be included as
conditions in hazardous waste facility permits for the remediation of
failures during operation and after facility closure, for facility
closure, and for pre-closure and post-closure facility monitoring and
maintenance. In promulgating regulations pursuant to this subdivision,
the department shall identify those regulations which vary from
applicable federal rules and regulations. Such regulations shall:

(a) Reflect due consideration of relevant federal requirements and
except where necessary to serve the public interest or where
inconsistent with the purposes of this section, conform to regulations
promulgated under the Resource Conservation and Recovery Act of 1976 and
the Comprehensive Environmental Response Compensation and Liability Act
of 1980 but shall in no case be less stringent than such federal
requirements and regulations.

(b) Reflect due consideration of the sizes and locations of affected
facilities, the natures and volumes of hazardous waste involved, the
types of facilities (treatment, storage or disposal) and the degrees and
durations of risk to human health or the environment.

(c) Provide for the establishment, administration, terms and
conditions of the following methods or instruments to be used as
alternatives or in combinations, in order to achieve non-duplicative
coverage of the financial assurance requirements mandated by this

(i) Trust funds.

(ii) Surety or performance bonds.

(iii) Letters of credit.

(iv) Liability insurance or annuities.

(v) Guarantees provided by corporate or other legal or financial
affiliates of the facility owner or operator.

(d) Establish:

(i) Exemptions for identified classes of facilities engaged in
treatment or storage of hazardous waste for which financial assurance
requirements for closure and post-closure monitoring and maintenance are
unnecessary or inappropriate.

(ii) Financial criteria for the purpose of determining the financial
condition of permit applicants and permit holders. Such financial
criteria shall be established for the purpose of determining the
relative financial viability of permit holders and applicants. The
department shall establish standards of minimum financial viability
based on the criteria. Any permit holder or applicant meeting the
minimum financial viability standard may select at its own discretion
which of the methods or instruments described in paragraph (c) of this
subdivision will be used to meet the requirements of subdivision five of
this section. With respect to permit holders or applicants which do not
meet the minimum financial viability standards, the commissioner may in
his discretion determine which method or instrument or combination
thereof shall be used to meet the requirements of subdivision five of
this section. Any decision by the commissioner with respect to
determining which methods or instruments are to be used shall be
accompanied by a finding regarding the public interest and shall set
forth the reasons therefor.

(iii) Requirements for the initial and periodic submission by permit
holders and applicants to the department of up to date financial data
based on the test criteria established pursuant to subparagraph (ii) of
this paragraph.

(iv) The duration of such financial requirements.

(v) The method for phasing-in financial requirements for existing

2. The commissioner shall undertake an analysis of the use of a
financial test as an alternative to the requirements for use of the
financial assurances methods or instruments provided for in paragraph
(c) of subdivision one of this section. In his analysis the commissioner
shall consider relevant federal rules and regulations and their
rationale, the use of such a test by other states, and the impact on
affected business and industry as well as the public health and safety
and any other factors he may consider relevant.

In undertaking such analysis, the commissioner shall conduct at least
one public hearing and shall make a finding as to whether or not the
public interest warrants the use of a financial test for the purposes
stated herein and shall report such finding to the legislature within
twelve months of the effective date of this section.

In the event the commissioner finds that the public interest warrants
use of a financial test, the commissioner shall within eighteen months
after the effective date of this section, promulgate regulations making
provisions for use of a financial test. Any such regulations shall give
due consideration to relevant federal requirements and, except where
necessary to serve the public interest or where inconsistent with the
purposes of this section, shall conform to relevant federal regulations
but shall in no case be less stringent.

3. Any owner or operator of an existing or proposed hazardous waste
facility may request a modification from the department of any of the
financial requirements established pursuant to subdivision one of this
section. A modification may be granted in the discretion of the
department if such financial requirements are found to be unnecessary or
inappropriate, consistent with public interest and the purposes of this
section and supported by written findings setting forth the reasons for
the modification. Such modification request shall be considered a
request for modification of the permit for the facility pursuant to
article seventy of this chapter. In no case shall a modification granted
pursuant to this subdivision eliminate or reduce the minimum
requirements established in subdivision five of this section.

4. In addition to the financial requirements established pursuant to
subdivision one of this section, permits for the construction and
operation of certain categories of hazardous waste facilities, as those
categories are defined in regulations, may, if the commissioner
determines that adequate protection of the public so requires, include
conditions related to any or all of the following, including
responsibility for the costs thereof:

(a) On-site environmental monitors whose function shall be to monitor
compliance with permit conditions. The commissioner may promulgate
regulations regarding the use of such monitors.

(b) Site safety plans whereby the permittee shall establish, with the
cooperation of local government officials, a community and project
safety plan, including but not limited to an accident response based on
a worst-case condition, on-site and off-site, a personnel training
program, provisions for coordination with local emergency services and
regular training exercises. Any such plan shall be subject to the
approval of the department.

(c) Long term management plans, the purpose of which shall be to
insure that the permittee devotes adequate resources to the examination
and implementation of technologies for hazardous waste management which
provide the maximum degree of environmental and public health protection
practicable. The department shall, to the extent reasonably possible,
make available any information or data appropriate and consistent with
the purposes of this paragraph. Such a plan shall include but not be
limited to the following:

(i) An overview of existing technologies being employed at the

(ii) An analysis of alternate technologies available for the treatment
or disposal of waste streams currently being managed or those which the
applicant/permittee anticipates managing.

(iii) An assessment of marketing considerations related to the
employment of alternate technologies.

(iv) An evaluation of the feasibility of financing modifications to
the existing facility in order to employ the alternate technologies.

(v) A statement from the applicant/permittee regarding its intent to
implement the alternate technologies, where appropriate, and a detailed
discussion of the measures the applicant/permittee will take to
implement the same.

5. Any permit issued by the department to construct or operate a
hazardous waste facility shall, except pursuant to regulations
promulgated pursuant to subdivision two of this section, require the
owner or operator, or an affiliate thereof, to secure, at a minimum, one
of the instruments of financial assurance provided for in paragraph (c)
of subdivision one of this section. Such instruments shall be designed
to insure proper facility closure, based on the estimates approved
pursuant to section 27-0918 of this chapter, and coverage of personal
injury and property damage to third parties caused by the operation of
such facility. Such instruments shall from time to time be reviewed and
updated, pursuant to regulations promulgated by the department, to
insure their continued adequacy for the purposes of this section. The
requirements of this subdivision shall not apply to permits granted to
the state or to any facilities exempted pursuant to subparagraph (i) of
paragraph (d) of subdivision one of this section.

6. If a permit holder or applicant relies upon the financial condition
of a corporate parent or affiliate to meet any financial test or
criteria established pursuant to this title or regulations promulgated
thereunder, the parent or affiliate shall guarantee the performance of
all financial assurance requirements imposed pursuant to this title,
including the costs of any closure and post-closure plan.

7. Within six months after the effective date of regulations
promulgated pursuant to subdivision one of this section, owners or
operators of all affected existing facilities shall make application for
a permit or permit modification to achieve compliance with such
regulations, and immediately upon such effective date no application for
a permit for any proposed affected facility shall be complete for the
purposes of article seventy of this chapter without complying with such
regulations. Receipt of such applications by the department shall be
published in the next issue of the environmental notice bulletin
following receipt.

8. In the case of permits for the construction and operation of
commercial hazardous waste facilities which utilize secure landburial
facilities as a primary disposal technique, such permits shall include
the conditions enumerated in subdivision four of this section. In
addition, the department shall establish qualifications for on-site
environmental monitors to be stationed at such facilities. In order to
enhance the ability of the department to monitor all aspects of a secure
landfill operator the qualifications shall include a requirement that
such monitors be expert in at least one of the areas of geology,
chemistry or engineering. The department shall ensure that the monitors
assigned to a particular facility at any one time shall, to the extent
possible, have different areas of expertise as among themselves. In
addition the department shall establish a rotation of monitors, when
more than one such facility exists, to ensure no individual monitor is
assigned to a particular facility for more than six months in any single

9. The commissioner shall promulgate regulations establishing
requirements of financial responsibility to assure the completion of
corrective action required pursuant to subdivision two of section
27-0911 or subdivision one of section 27-0913 of this title.