Section 335.703 - Financial Assurance Requirements(a) Applicability. (1) The requirements of this section apply to owners or operators of reclamation facilities and intermediate facilities managing hazardous secondary materials excluded under 40 Code of Federal Regulations (CFR) §261.4(a)(24), except:(2) States and the Federal government are exempt from the financial assurance requirements of this section.(b) When used in this section, the following words and terms shall have the same meanings as the definitions in § 37.11 and § 335.1 of this title (relating to Definitions) except: (1) Closure--Includes the activities under § 335.8 of this title (relating to Closure and Remediation) and applicable closure requirements of 40 CFR Parts 264 and 265.(2) Closure plan--Includes the removal and decontamination plan for release as set out in § 335.705 of this title (relating to Removal and Decontamination Plan for Release).(c) Owners and operators of a reclamation facility or an intermediate facility required by 40 CFR § 261.4(a)(24) to provide financial assurance, shall establish and maintain financial assurance for removal and decontamination and corrective action as a condition of the exclusion under 40 CFR § 261.4(a)(24) and comply with Chapter 37, Subchapters A and B of this title (relating to General Financial Assurance Requirements; and Financial Assurance Requirements for Closure, Post Closure, and Corrective Action) except: (1) an owner or operator must submit an acceptable originally signed mechanism to the executive director prior to the management of hazardous secondary materials under the exclusion in 40 CFR § 261.4(a)(24);(2) in addition to the reasons to draw specified in § 37.101 of this title (relating to Drawing on the Financial Assurance Mechanisms), the executive director may draw on the financial assurance mechanism(s) following a determination by the executive director that the hazardous secondary materials do not meet the conditions of the exclusion under 40 CFR § 261.4(a)(24).(d) Owners or operators of a reclamation facility or intermediate facility required by 40 CFR § 261.4(a)(24) to provide financial assurance must comply with Chapter 37, Subchapter C of this title (relating to Financial Assurance Mechanisms for Closure, Post Closure, and Corrective Action), by establishing financial assurance for removal and decontamination and corrective action using any of the following mechanisms as specified in Chapter 37, Subchapter C of this title: (1) Trust fund (fully funded), except reimbursements to the owner or operator as specified under § 37.201(j) of this title (relating to Trust Fund) may only be made if the owner or operator begins final closure under the applicable requirements of 40 CFR Part 264 or 265 ;(2) Surety bond guaranteeing payment, except:(A) the bond must guarantee that the owner or operator will fund the standby trust fund in an amount equal to the penal sum of the bond before the loss of the exclusion under 40 CFR § 261.4(a)(24) rather than the criteria set out in § 37.211(d) of this title (relating to Surety Bond Guaranteeing Payment); and(B) the alternate financial assurance to be provided by the Principal must meet the requirements specified in this section;(3) Irrevocable standby letter of credit, except:(A) the executive director may draw pursuant to subsection (c)(2) of this section in addition to § 37.231 of this title (relating to Irrevocable Standby Letter of Credit); and(B) alternate financial assurance must meet the requirements specified in this section;(4) Financial test, except: (A) the financial assurance amounts required by this section, for hazardous secondary materials must be included as an additional environmental obligation when determining eligibility for the financial test in accordance with § 37.251 of this title (relating to Financial Test); and(B) alternate financial assurance must meet the requirements of this section;(5) Corporate guarantee except: (A) the terms of the guarantee specified in § 37.261(e)(1) of this title (relating to Corporate Guarantee), shall provide that following a determination by the executive director that the hazardous secondary materials at the owner or operator's facility covered by this guarantee do not meet the requirements of the exclusion under 40 CFR § 261.4(a)(24) the guarantor will dispose of any hazardous secondary material as hazardous waste and close the facility in accordance with the applicable closure requirements of 40 CFR Part 264 or 265, or establish a trust fund as specified in this section, in the name of the owner or operator in the amount of the current cost estimate; and(B) the terms of the guarantee requiring alternate financial assurance in § 37.261(e)(3) of this title must meet the requirements of this section.(e) Owners or operators of a reclamation facility or intermediate facility required by 40 CFR § 261.4(a)(24) to provide financial assurance for removal and decontamination and corrective action shall comply with the wording requirements of Chapter 37, Subchapter D of this title (relating to Wording of the Mechanisms for Closure, Post Closure and Corrective Action) for the mechanisms indicated in subsection (d) of this section except:(1) the phrases in the Payment Bond under § 37.311 of this title (relating to Payment Bond) shall be revised by: (A) replacing the following language identified here by quotation marks "Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of, or corrective action at, each facility identified above, fund into the standby trust fund the amount(s) identified above for the facility," with the following language identified here by quotation marks "Now, therefore, the conditions of the obligation are such that if the Principal shall faithfully, before the beginning of final closure of, or corrective action at, each facility identified above, fund into the standby trust fund the amount(s) identified above for the facility; or, if the Principal shall satisfy all the requirements for exclusion of hazardous secondary materials from classification as solid waste under 40 CFR § 261.4(a)(24) and be released from the financial assurance requirements by the executive director"; and(B) replacing the following language identified here by quotation marks "Or, if the Principal shall provide alternate financial assurance, as specified in 30 Texas Administrative Code, Chapter 37 (relating to Financial Assurance)" with the following language set off here by quotation marks "Or, if the Principal shall provide alternate financial assurance, as specified in 30 Texas Administrative Code, § 335.703(relating to Financial Assurance Requirements)"; and(C) replacing the certification statement at the end of the Payment Bond with the following statement identified by quotation marks "The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in 30 Texas Administrative Code § 37.311(relating to Payment Bond), as modified by 30 Texas Administrative Code § 335.703(relating to Financial Assurance Requirements), as such regulations were constituted on the date the bond was executed.";(2) The Chief Financial Officer's letter associated with the financial test specified in § 37.351 of this title (relating to Financial Test), shall include the environmental obligations associated with the exclusion in paragraph 5(f) of the Chief Financial Officer's Letter in Figure: 30 TAC § 37.351;(3) The wording of the Corporate Guarantee required by § 37.361 of this title (relating to Corporate Guarantee) shall be revised by: (A) replacing Recital number 4 with "For value received from (owner or operator) (describe consideration and dollar amount), guarantor guarantees to the TCEQ that in the event of a determination by the executive director that the hazardous secondary materials at the owner or operator's facility covered by this guarantee do not meet the conditions of the exclusion under 40 CFR § 261.4(a)(24), the guarantor will dispose of any hazardous secondary material as hazardous waste, and close the facility in accordance with the applicable closure requirements of 40 CFR Part 264 or 265, or establish a trust fund as specified in 30 Texas Administrative Code § 335.703(relating to Financial Assurance Requirements) in the name of the (owner or operator) in the amount of the current cost estimate";(B) replacing Recital number 5 with "Guarantor agrees that if, at the end of any fiscal year before termination of this guarantee, the guarantor fails to meet the financial test criteria, guarantor shall send within 90 days, by certified mail, notice to the TCEQ executive director and to (owner or operator) that the guarantor intends to provide alternate financial assurance as specified in 30 Texas Administrative Code § 335.703(relating to Financial Assurance Requirements), as applicable, in the name of (owner or operator). Within 120 days after the end of such fiscal year, the guarantor shall establish such financial assurance unless (owner or operator) has done so";(C) replacing Recital number 7 with "Guarantor agrees that within 30 days after being notified by the TCEQ executive director of a determination that guarantor no longer meets the financial test criteria or is disallowed from continuing as a guarantor of (closure, post closure, or corrective action), guarantor shall establish alternate financial assurance as specified in 30 Texas Administrative Code § 335.703(relating to Financial Assurance Requirements) in the name of (owner or operator) unless (owner or operator) has done so";(D) replacing Recital number 11 with "Guarantor agrees that if (owner or operator) fails to provide alternate financial assurance as specified in 30 Texas Administrative Code § 335.703(relating to Financial Assurance Requirements), and obtain written approval of alternate financial assurance from the TCEQ executive director within 90 days after a notice of termination by the guarantor is received by the TCEQ executive director from guarantor, guarantor shall provide such alternate financial assurance in the name of the (owner or operator)"; and(E) The wording of the certification statement at the end of the Corporate Guarantee shall be replaced with the following language identified by quotation marks "I hereby certify that the wording of this guarantee is identical to the wording specified in 30 Texas Administrative Code § 37.361(relating to Corporate Guarantee) as modified by 30 Texas Administrative Code § 335.703(relating to Financial Assurance Requirements) as such regulations were constituted on the date first above written."(f) An owner or operator of a reclamation or intermediate facility, or a group of facilities, subject to financial assurance requirements under 40 CFR § 261.4(a)(24) shall establish and maintain financial assurance for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.(g) An owner or operator of a reclamation or intermediate facility, or group of facilities, with a land-based unit as defined in § 335.1 of this title shall establish and maintain financial assurance for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator must have and maintain liability coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.(h) An owner or operator who must meet the requirements of subsections (f) and (g) of this section may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences must maintain liability coverage in the amount of $4 million per occurrence and $8 million annual aggregate.(i) Owners or operators of a reclamation facility or intermediate facility, or a group of facilities, subject to financial assurance requirements under 40 CFR § 261.4(a)(24) must also comply with Chapter 37, Subchapters A and E of this title (relating to General Financial Assurance Requirements; and Financial Assurance Requirements for Liability Coverage) and shall use any of the mechanisms specified in Chapter 37, Subchapter F of this title (relating to Financial Assurance Mechanisms for Liability) to meet the liability requirements of this section except: (1) liability insurance may only be demonstrated by providing an Endorsement for Liability as specified in § 37.641 of this title (relating to Endorsement for Liability); and(2) when using the financial test in accordance with § 37.541 of this title (relating to Financial Test for Liability) the financial assurance amounts required by of this section, for hazardous secondary materials excluded under 40 CFR § 261.4(a)(24) must be included as an additional environmental obligation.(j) An owner or operator of a reclamation facility, an intermediate facility, or a group of facilities required by 40 CFR § 261.4(a)(24) to provide financial assurance demonstrating liability coverage shall comply with the requirements of Chapter 37, Subchapter G of this title (relating to Wording of the Mechanisms for Liability) for the mechanisms required by subsection (i) of this section except The Chief Financial Officer's letter associated with the financial test for liability specified in § 37.651 of this title (relating to Financial Test for Liability), must include the financial assurance amounts required by this section, for hazardous secondary materials excluded under 40 CFR § 261.4(a)(24) as an additional environmental obligation in paragraph 5(f) of the Chief Financial Officer's Letter in Figure: 30 TAC § 37.351.(k) If the state of Texas either assumes legal responsibility for an owner's or operator's compliance with the closure, post closure, corrective action, or liability requirements of this chapter, or assures that funds will be available from state sources to cover those requirements, the owner or operator will be in compliance with the requirements of this chapter if the executive director determines that the state's assumption of responsibility is at least equivalent to the financial mechanisms specified in this chapter. The executive director will evaluate the equivalency of state guarantees principally in terms of certainty of the availability of funds for the required closure, post closure, or corrective action activities, or liability coverage; and the amount of funds that will be made available. The executive director may also consider other factors as the executive director deems appropriate. The owner or operator must submit to the executive director a letter from the State of Texas describing the nature of the state's assumption of responsibility together with a letter from the owner or operator requesting that the state's assumption of responsibility be considered acceptable for meeting the requirements of this chapter. The letter from the state must include the following information: the facility's permit number and/or solid waste registration number, name, physical and mailing addresses, and the amount of funds for closure, post closure, or corrective action or liability coverage that are guaranteed by the state. The executive director will notify the owner or operator of the determination regarding the acceptability of the state's guarantee in lieu of financial mechanisms specified in this chapter. The executive director may require the owner or operator to submit additional information as is deemed necessary to make this determination. Upon approval by the executive director, the owner or operator will be deemed to be in compliance with the requirements of this chapter. If the State of Texas' assumption of responsibility is found acceptable as specified in this section except for the amount of funds available, the owner or operator may satisfy the requirements of this chapter by use of both the state's assurance and additional financial mechanisms as specified in this chapter. The amount of funds available through the state and the owner or operator's mechanisms shall equal at least the required amount.30 Tex. Admin. Code § 335.703
Adopted by Texas Register, Volume 41, Number 24, June 10, 2016, TexReg 4288, eff. 6/16/2016; Amended by Texas Register, Volume 47, Number 04, January 28, 2022, TexReg 0346, eff. 2/3/2022