Section 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
  section:
    (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
  facilities.
    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
  facility.
    (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
  year.
    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.