§ 27-0917 — Financial requirements for hazardous waste facilities

§ 27-0917. Financial requirements for hazardous waste facilities.\n 1. Within eighteen months after the effective date of this section,\nthe commissioner shall promulgate regulations for hazardous waste\nfacilities identifying financial requirements to be included as\nconditions in hazardous waste facility permits for the remediation of\nfailures during operation and after facility closure, for facility\nclosure, and for pre-closure and post-closure facility monitoring and\nmaintenance. In promulgating regulations pursuant to this subdivision,\nthe department shall identify those regulations which vary from\napplicable federal rules and regulations. Such regulations shall:\n (a) Reflect due consideration of relevant federal requirements and\nexcept where necessary to serve the public interest or where\ninconsistent with the purposes of this section, conform to regulations\npromulgated under the Resource Conservation and Recovery Act of 1976 and\nthe Comprehensive Environmental Response Compensation and Liability Act\nof 1980 but shall in no case be less stringent than such federal\nrequirements and regulations.\n (b) Reflect due consideration of the sizes and locations of affected\nfacilities, the natures and volumes of hazardous waste involved, the\ntypes of facilities (treatment, storage or disposal) and the degrees and\ndurations of risk to human health or the environment.\n (c) Provide for the establishment, administration, terms and\nconditions of the following methods or instruments to be used as\nalternatives or in combinations, in order to achieve non-duplicative\ncoverage of the financial assurance requirements mandated by this\nsection:\n (i) Trust funds.\n (ii) Surety or performance bonds.\n (iii) Letters of credit.\n (iv) Liability insurance or annuities.\n (v) Guarantees provided by corporate or other legal or financial\naffiliates of the facility owner or operator.\n (d) Establish:\n (i) Exemptions for identified classes of facilities engaged in\ntreatment or storage of hazardous waste for which financial assurance\nrequirements for closure and post-closure monitoring and maintenance are\nunnecessary or inappropriate.\n (ii) Financial criteria for the purpose of determining the financial\ncondition of permit applicants and permit holders. Such financial\ncriteria shall be established for the purpose of determining the\nrelative financial viability of permit holders and applicants. The\ndepartment shall establish standards of minimum financial viability\nbased on the criteria. Any permit holder or applicant meeting the\nminimum financial viability standard may select at its own discretion\nwhich of the methods or instruments described in paragraph (c) of this\nsubdivision will be used to meet the requirements of subdivision five of\nthis section. With respect to permit holders or applicants which do not\nmeet the minimum financial viability standards, the commissioner may in\nhis discretion determine which method or instrument or combination\nthereof shall be used to meet the requirements of subdivision five of\nthis section. Any decision by the commissioner with respect to\ndetermining which methods or instruments are to be used shall be\naccompanied by a finding regarding the public interest and shall set\nforth the reasons therefor.\n (iii) Requirements for the initial and periodic submission by permit\nholders and applicants to the department of up to date financial data\nbased on the test criteria established pursuant to subparagraph (ii) of\nthis paragraph.\n (iv) The duration of such financial requirements.\n (v) The method for phasing-in financial requirements for existing\nfacilities.\n 2. The commissioner shall undertake an analysis of the use of a\nfinancial test as an alternative to the requirements for use of the\nfinancial assurances methods or instruments provided for in paragraph\n(c) of subdivision one of this section. In his analysis the commissioner\nshall consider relevant federal rules and regulations and their\nrationale, the use of such a test by other states, and the impact on\naffected business and industry as well as the public health and safety\nand any other factors he may consider relevant.\n In undertaking such analysis, the commissioner shall conduct at least\none public hearing and shall make a finding as to whether or not the\npublic interest warrants the use of a financial test for the purposes\nstated herein and shall report such finding to the legislature within\ntwelve months of the effective date of this section.\n In the event the commissioner finds that the public interest warrants\nuse of a financial test, the commissioner shall within eighteen months\nafter the effective date of this section, promulgate regulations making\nprovisions for use of a financial test. Any such regulations shall give\ndue consideration to relevant federal requirements and, except where\nnecessary to serve the public interest or where inconsistent with the\npurposes of this section, shall conform to relevant federal regulations\nbut shall in no case be less stringent.\n 3. Any owner or operator of an existing or proposed hazardous waste\nfacility may request a modification from the department of any of the\nfinancial requirements established pursuant to subdivision one of this\nsection. A modification may be granted in the discretion of the\ndepartment if such financial requirements are found to be unnecessary or\ninappropriate, consistent with public interest and the purposes of this\nsection and supported by written findings setting forth the reasons for\nthe modification. Such modification request shall be considered a\nrequest for modification of the permit for the facility pursuant to\narticle seventy of this chapter. In no case shall a modification granted\npursuant to this subdivision eliminate or reduce the minimum\nrequirements established in subdivision five of this section.\n 4. In addition to the financial requirements established pursuant to\nsubdivision one of this section, permits for the construction and\noperation of certain categories of hazardous waste facilities, as those\ncategories are defined in regulations, may, if the commissioner\ndetermines that adequate protection of the public so requires, include\nconditions related to any or all of the following, including\nresponsibility for the costs thereof:\n (a) On-site environmental monitors whose function shall be to monitor\ncompliance with permit conditions. The commissioner may promulgate\nregulations regarding the use of such monitors.\n (b) Site safety plans whereby the permittee shall establish, with the\ncooperation of local government officials, a community and project\nsafety plan, including but not limited to an accident response based on\na worst-case condition, on-site and off-site, a personnel training\nprogram, provisions for coordination with local emergency services and\nregular training exercises. Any such plan shall be subject to the\napproval of the department.\n (c) Long term management plans, the purpose of which shall be to\ninsure that the permittee devotes adequate resources to the examination\nand implementation of technologies for hazardous waste management which\nprovide the maximum degree of environmental and public health protection\npracticable. The department shall, to the extent reasonably possible,\nmake available any information or data appropriate and consistent with\nthe purposes of this paragraph. Such a plan shall include but not be\nlimited to the following:\n (i) An overview of existing technologies being employed at the\nfacility.\n (ii) An analysis of alternate technologies available for the treatment\nor disposal of waste streams currently being managed or those which the\napplicant/permittee anticipates managing.\n (iii) An assessment of marketing considerations related to the\nemployment of alternate technologies.\n (iv) An evaluation of the feasibility of financing modifications to\nthe existing facility in order to employ the alternate technologies.\n (v) A statement from the applicant/permittee regarding its intent to\nimplement the alternate technologies, where appropriate, and a detailed\ndiscussion of the measures the applicant/permittee will take to\nimplement the same.\n 5. Any permit issued by the department to construct or operate a\nhazardous waste facility shall, except pursuant to regulations\npromulgated pursuant to subdivision two of this section, require the\nowner or operator, or an affiliate thereof, to secure, at a minimum, one\nof the instruments of financial assurance provided for in paragraph (c)\nof subdivision one of this section. Such instruments shall be designed\nto insure proper facility closure, based on the estimates approved\npursuant to section 27-0918 of this chapter, and coverage of personal\ninjury and property damage to third parties caused by the operation of\nsuch facility. Such instruments shall from time to time be reviewed and\nupdated, pursuant to regulations promulgated by the department, to\ninsure their continued adequacy for the purposes of this section. The\nrequirements of this subdivision shall not apply to permits granted to\nthe state or to any facilities exempted pursuant to subparagraph (i) of\nparagraph (d) of subdivision one of this section.\n 6. If a permit holder or applicant relies upon the financial condition\nof a corporate parent or affiliate to meet any financial test or\ncriteria established pursuant to this title or regulations promulgated\nthereunder, the parent or affiliate shall guarantee the performance of\nall financial assurance requirements imposed pursuant to this title,\nincluding the costs of any closure and post-closure plan.\n 7. Within six months after the effective date of regulations\npromulgated pursuant to subdivision one of this section, owners or\noperators of all affected existing facilities shall make application for\na permit or permit modification to achieve compliance with such\nregulations, and immediately upon such effective date no application for\na permit for any proposed affected facility shall be complete for the\npurposes of article seventy of this chapter without complying with such\nregulations. Receipt of such applications by the department shall be\npublished in the next issue of the environmental notice bulletin\nfollowing receipt.\n 8. In the case of permits for the construction and operation of\ncommercial hazardous waste facilities which utilize secure landburial\nfacilities as a primary disposal technique, such permits shall include\nthe conditions enumerated in subdivision four of this section. In\naddition, the department shall establish qualifications for on-site\nenvironmental monitors to be stationed at such facilities. In order to\nenhance the ability of the department to monitor all aspects of a secure\nlandfill operator the qualifications shall include a requirement that\nsuch monitors be expert in at least one of the areas of geology,\nchemistry or engineering. The department shall ensure that the monitors\nassigned to a particular facility at any one time shall, to the extent\npossible, have different areas of expertise as among themselves. In\naddition the department shall establish a rotation of monitors, when\nmore than one such facility exists, to ensure no individual monitor is\nassigned to a particular facility for more than six months in any single\nyear.\n 9. The commissioner shall promulgate regulations establishing\nrequirements of financial responsibility to assure the completion of\ncorrective action required pursuant to subdivision two of section\n27-0911 or subdivision one of section 27-0913 of this title.\n