Regulations: Title 27, Environmental Protection--Division 2, Solid Waste

Chapter 6. Financial Assurances at Solid Waste Facilities and at Waste Management Units for Solid Waste

Subchapter 1. Definitions for Financial Assurance Demonstrations and Requirements

When used in this Chapter, the following terms shall have the meanings given below:

(a) "Accidental occurrence" means an event, including pollution exposures, which occurs during the operation of a disposal facility prior to closure, that results in bodily injury and/or property damage, and includes continuous or repeated exposure to conditions, neither expected nor intended from the standpoint of the facility operator.

(b) "Admitted carrier" means an insurance company entitled to transact the business of insurance in this state, having complied with the laws imposing conditions precedent to transactions of such business.

(c) "Annual capacity filled" means the portion of a solid waste landfill’s total permitted capacity that was filled during the following period:

(1) From August 18, 1989 until 60 days prior to the anniversary date of the establishment of a trust fund or an enterprise fund; and

(2) From 60 days prior to each anniversary date of the establishment of a trust fund or an enterprise fund that occurs before the subsequent anniversary date.

(d) "Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity as a result of past transactions.

(e) "Auto" means a land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment. But "auto" does not include "mobile equipment," as defined in (dd).

(f) "Bodily injury" means any injury to the body, sickness or disease sustained by a person, including death resulting from any of these at any time. Damages because of "bodily injury" include damages claimed by any person or organization for care, loss of services or death resulting at any time from the "bodily injury."

"Bodily injury" excludes:

(1) "Bodily injury" expected or intended from the standpoint of the operator. This exclusion does not apply to "bodily injury" resulting from the use of reasonable force to protect persons or property.

(2) "Bodily injury" for which the operator is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the operator would have in the absence of the contract or agreement.

(3) Any obligation of the operator under a workers compensation, disability benefits or unemployment compensation law or any similar law.

(4) "Bodily injury" to:

(A) An employee of the operator arising out of and in the course of employment by the operator; or

(B) The spouse, child, parent, brother or sister of that employee as a consequence of (A) above.

This exclusion applies:

1. Whether the operator may be liable as an employer or in any other capacity; and

2. To any obligation to share damages with or repay someone else who must pay damages because or the injury.

(5) "Bodily injury" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any operator. Use includes operation and loading or unloading. This exclusion does not apply to:

(A) Parking an "auto" on, or on the ways next to, premises the operator owns or rents, provided the "auto" is not owned by or rented or loaned to the operator;

(B) "Bodily injury" arising out of the operation of any of the equipment listed in(6)(A) or (6)(B) of the definition of "mobile equipment", found in (aa) below.

(g) "Captive Insurance Company" means an insurance carrier established by a solid waste facility operator to meet the financial assurance obligations of the operator.

(h) "Cash plus marketable securities" means all the cash plus marketable securities held by the local government on the last day of the fiscal year, excluding cash and marketable securities designated to satisfy past obligations such as pensions. Cash plus marketable securities form the numerator of the liquidity ratio.

(1) Cash and cash equivalents means bank deposits, very short-term debt securities, and money market funds.

(2) Marketable securities means interest or dividend bearing securities in the General Fund, Special Revenue Funds, Debt Service Fund, Enterprise Funds and Internal Service Funds, as reported on the comprehensive annual financial report's (CAFR's) Combined Balance Sheet and that are expected to be held for less than one year.

(3) Excluded from this definition are accounts receivable, retirement assets, real property, fixed assets, and other non-current assets, as well as any assets (including cash) in Capital Projects Funds.

(i) "Comprehensive Annual Financial Report (CAFR)" means annual financial report prepared by local governments.

(j) "Cumulative capacity filled" means the sum of the annual capacities filled since August 18, 1989.

(k) "Current assets" means cash or other assets or resources commonly identified as those that are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.

(l) "Current closure cost estimate" means the most recent of the estimates prepared in accordance with section 21820.

(m) "Current liabilities" means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.

(n) "Current postclosure cost estimate" means the most recent of the estimates prepared in accordance with section 21840.

(o) "Debt service" means the amount of principal and interest due on a loan in the latest completed fiscal year. Annual debt service is the numerator of the debt service ratio. The debt service ratio provides an indicator of ability to meet financial obligations in a timely manner.

(1) Sum of amounts in any debt service category including bond principal, other debt principal, interest on bonds, interest on other debt in the General Fund, Special Revenue Funds, Debt Service Fund, and Capital Projects Funds.

(2) Debt service amounts are reported in the comprehensive annual financial report's (CAFR's) Combined Statement of Revenues, Expenditures and Changes in Fund Balances/Equity.

(3) Interest expense in Enterprise Funds and Internal Service Funds are reported on comprehensive annual financial report's (CAFR's) Combined Statement of Revenues, Expenses and Changes in Retained Earnings/Fund Balances.

(p) "Enterprise fund" means a fund meeting the requirements of section 22241, of Article 2, of Subchapter 3, of this Chapter, that is established to account for the financing of self-supporting activities of a government unit that renders services on a user-fee basis.

(q) "Excess coverage" means assurance for third party bodily injury and property damage costs that are above a specified level (i.e., above the primary coverage level or a limit of lower excess coverage) but up to a specified limit.

(r) "Federal entity" means the United States Government, or any department, agency, or instrumentality thereof.

(s) "Financial means test" means the financial assurance mechanism specified in section 22246 of Article 2 of Subchapter 3 of this Chapter by which an operator demonstrates his or her ability to pay third party claims for bodily injury and property damage caused by accidental occurrences and/or to pay future postclosure maintenance costs by satisfying the prescribed set of financial criteria.

(t) "Financial reporting year" means the twelve-month period for which financial statements that are used to support the financial means test are prepared.

(u) "Fully funded" means the value of a closure and/or postclosure maintenance and/or corrective action fund is equal to, or greater than, the total current closure and/or postclosure maintenance and/or corrective action cost estimate(s) for the facility(ies) covered.

(v) "Government securities" means financial obligations meeting the requirements of section 22242 of Article 2 of Subchapter 3 of this Chapter that are issued by a federal, state, or local government, including but not limited to, general obligation bonds, revenue bonds, and certificates of participation.

(w) "Guarantee" means a contract meeting the requirements of section 22247, of Article 2 of Subchapter 3 of this Chapter, by which a guarantor promises that, if the operator fails to perform postclosure maintenance, or to adequately compensate legitimate third party claimants for bodily injury and/or property damage caused by an accidental occurrence, the guarantor will perform postclosure maintenance, compensate the third party for damages, or will establish and fund a trust fund in the name of the operator to pay for such activities.

(x) "Guarantor" means a parent corporation, or a corporation with a substantial business relationship to the operator who guarantees payment of a present or future obligation(s) of an operator.

(y) "Insurance" means a contract meeting the requirements of section 22248 or section 22251 of Article 2 of Subchapter 3 of this Chapter by which an insurer promises to pay for closure, postclosure maintenance or corrective action, or a claim by a third party for bodily injury and property damage caused by an accidental occurrence.

(z) "Legal defense costs" means expenses that an operator or a provider of financial assurance incurs in defending claims brought:

(1) By or on behalf of a third party for bodily injury and/or property damage caused by an accidental occurrence; or

(2) By any person to enforce the terms of a financial assurance mechanism.

(aa) "Letter of credit" means a contract meeting the requirements of section 22243, of Article 2 of Subchapter 3 of this Chapter, by which the issuing institution promises to extend credit on behalf of an operator to the CIWMB upon the presentation of the mechanism in accordance with its terms.

(bb) "Liabilities" means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future, as a result of past transactions or events.

(cc) "Minimum fund balance" means the required minimum balance maintained in a trust fund or enterprise fund in compliance with the formula(s) in section 22225 or section 22226 of Article 1 of Subchapter 3 of this Chapter.

(dd) "Mobile equipment" means any of the following types of land vehicles, including any attached machinery or equipment:

(1) Bulldozers, farm machinery, forklifts and other vehicles designed for use principally off public roads;

(2) Vehicles maintained for use solely on or next to premises the operator owns or rents;

(3) Vehicles that travel on crawler treads;

(4) Vehicles, whether self-propelled or not, maintained primarily to provide mobility to permanently mounted:

(A) Power cranes, shovels, loaders, diggers or drills; or

(B) Road construction or resurfacing equipment such as graders, scrapers or rollers;

(5) Vehicles not described in (1), (2), (3) or (4) above that are not self-propelled and are maintained primarily to provide mobility to permanently attached equipment of the following types:

(A) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment; or

(B) Cherry pickers and similar devices used to raise or lower workers;

(6) Vehicles not described in (1), (2), (3) or (4) above maintained primarily for purposes other than the transportation of persons or cargo. However, self-propelled vehicles with the following types of permanently attached equipment are not "mobile equipment" but will be considered "autos":

(A) Equipment designed primarily for:

1. Snow removal;

2. Road maintenance, but not construction or resurfacing;

3. Street cleaning;

(B) Cherry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers; and

(C) Air compressors, pumps and generators, including spraying, welding, building cleaning, geophysical exploration, lighting and well servicing equipment.

(ee) "Net working capital" means current assets minus current liabilities.

(ff) "Net worth" means total assets minus total liabilities and is equivalent to owner's equity.

(gg) "Operating deficit" means total expenditures minus total revenues.

(hh) "Parent corporation" means a corporation that owns directly or through its subsidiaries at least 50 percent of the voting stock of another corporation.

(ii) [Reserved]

(jj) "Pledge of revenue" means a financial assurance mechanism meeting the requirements of section 22245, of Article 2 of Subchapter 3 of this Chapter, by which a government unit promises to make specific, identified future revenue available to pay future postclosure maintenance costs.

(kk) "Primary coverage" means the first priority coverage for third party bodily injury and property damage costs, and closure and/or postclosure maintenance costs, up to a specified limit when used in combination with other coverage.

(ll) "Property damage" means physical injury to tangible property, including all resulting loss of use of that property, or loss of use of tangible property that is not physically injured. "Property damage" excludes:

(1) "Property damage" expected or intended from the standpoint of the operator.

(2) "Property damage" for which the operator is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the operator would have in the absence of the contract or agreement.

(3) An obligation of the operator under a workers' compensation, disability benefits, or unemployment compensation law or similar law.

(4) "Property damages" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any operator. Use includes operation and loading and unloading. This exclusion does not apply to:

(A) Parking an "auto" on, or on the ways next to, premises the operator owns or rents, provided the "auto" is not owned by or rented or loaned to the operator;

(B) "Property damage" arising out of the operation of any of the equipment listed in  (6)(A) or (6)(B) of the definition of "mobile equipment," found in (dd) above.

(5) "Property damage" to:

(A) Any property owned, rented, or occupied by the operator;

(B) Premises that are sold, given away, or abandoned by the operator if the "property damage" arises out of any part of those premises;

(C) Property loaned to the operator;

(D) Personal property in the care, custody, or control of the operator; and

(E) That particular part of real property on which the operator or any contractors or subcontractors working directly or indirectly on behalf of the operator are performing operations, if the "property damage" arises out of those operations, or

(F) That particular part of any property that must be restored, repaired or replaced because the operator's work was incorrectly performed on it.

(mm) "Provider of financial assurance" means an entity, other than the operator of a disposal facility, that provides financial assurance to the operator including, but not limited to, a trustee, an institution issuing a letter of credit, a surety company, an insurer, a guarantor, or an institution providing a financial assurance mechanism used in conjunction with an enterprise fund, government securities, or pledge of revenue.

(nn) "Remaining cost estimate" means the value remaining when the current value of a closure and/or postclosure maintenance fund is subtracted from the current closure and/or postclosure maintenance cost estimate(s).

(oo) "Remaining permitted capacity" means the total permitted capacity at the disposal facility less the cumulative capacity filled at the disposal facility since August 18, 1989.

(pp) "Substantial business relationship" means a business relationship that arises from a pattern of recent or ongoing business transactions.

(qq) "Surety bond" means a contract meeting the requirements of section 22244, of Article 2, of Subchapter 3, of this Chapter, by which a surety company promises that, if the operator fails to perform required closure and/or postclosure maintenance and/or corrective action, the surety company will be liable for the operator's responsibilities as specified by the bond.

(rr) "Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets do not include intangibles such as goodwill and rights to patents or royalties.

(ss) "Total expenditures" means the sum of the six items listed in subsections (1) and (2) below.

(1) Items 1-3 reported on the comprehensive annual financial report's (CAFR's) Combined Statement of Revenues, Expenses and Changes in Fund Balances/Equity:

(A) Total Expenditures of the General Fund.

(B) Total Expenditures of Special Revenue Funds.

(C) Total Expenditures of the Debt Service Fund.

(2) Items 4-6 reported on the comprehensive annual financial report's (CAFR's) Combined Statement of Revenues, Expenses and Changes in Retained Earnings/Fund Balances:

(A) Total Operating Expenses Before Depreciation of Enterprise Funds

(B) If negative, Total Non-Operating Revenues (Net) of Enterprise Funds.

(C) If negative, Total Non-Operating Revenues (Net) of Internal Service Funds.

(3) Total expenditures is used in the liquidity and debt service ratios, and operating deficit limit.

(4) Include routine capital outlays that are accounted for in the General Fund, e.g. outlays for police vehicles, copy equipment; any capital outlays that are funded on a "pay-as-you-go" basis.

(5) Exclude non-routine capital outlays, which are generally accounted for in Capital Projects Funds.

(tt) "Total permitted capacity" means the capacity approved by the disposal facility permit, including any changes in capacity approved by a new permit or a permit modification; but excluding any capacity filled prior to August 18, 1989.

(uu) "Total revenues" means the sum of the seven items listed in subsections (1) and (2) below, and is used in the calculation of costs which can be assured by the local government financial test.

(1) Items 1-4 reported on the comprehensive annual financial report's (CAFR's) Combined Statement of Revenues, Expenses and Changes in Fund Balances/Equity:

(A) Total Revenues of the General Fund.

(B) Total Revenues of Special Revenue Funds.

(C) Total Revenues of the Debt Service Fund.

(D) Total Revenues of Capital Projects Funds.

(2) Items 5-7 reported on the comprehensive annual financial report's (CAFR's) Combined Statement of Revenues, Expenses and Changes in Retained Earnings/Fund Balances:

(A) Total Operating Revenues of Enterprise Funds.

(B) If positive, Total Non-Operating Revenues (Net) of Enterprise Funds.

(C) If positive, Total Non-Operating Revenues (Net) of Internal Service Funds.

(3) Total revenues is used in calculation of operating deficit and the limit on costs.

(vv) "Trust fund" means a contract meeting the requirements of section 22240, of Article 2, of Subchapter 3 of this Chapter, by which the operator transfers assets to a trustee to hold on behalf of the CIWMB or its designee to pay closure costs and/or postclosure maintenance costs and/or corrective action costs and/or third party operating liability claims.

Note:

Authority cited:
Sections 40502, 43040, and 43601.5, Public Resources Code.

References:
Sections 43040, 43103, and 43500 through 43610.1, Public Resources Code, Part 258.74(f) and (h), Title 40 Code of Federal Regulations.

Subchapter 2. Financial Assurance Requirements

Article 1. Financial Assurance for Closure

(a) This article requires operators of solid waste landfills to demonstrate the availability of financial resources to conduct closure activities.

(b) The requirements of this article apply to operators of all disposal facilities that are required to be permitted as solid waste landfills pursuant to Chapter 4 of this Division and have been or will be operated on or after January 1, 1988.

(c) Operators of all disposal facilities shall comply with the requirements of this Article upon application for issuance, amendment, modification, revision or review of a SWFP, commencing the effective date of this Article.

Note:

Authority cited: 
Sections 40502 and 43509, Public Resources Code. 

Reference: 
Sections 43103, 43500, 43600, 43602 and 43603, Public Resources Code.

(a) Except as otherwise Noted in section 22228 of Article 1 of Subchapter 3 of this Chapter, the operator of each solid waste landfill shall demonstrate financial responsibility to the CIWMB for closure in at least the amount of the current closure cost estimate.

Note:

Authority Cited:
Section 40502, Public Resources Code. 

Reference: 
Section 43103 and 43501, Public Resources Code.

The requirements of this section apply to dischargers who own or operate a Class II, or Class III waste management unit (Unit) or a mining waste management unit (mining Unit).

(a) Unit Closure Funding — At Class II and Class III Units for which the CIWMB does not require a closure fund, the RWQCB shall require the discharger to establish an irrevocable closure fund (or to provide other means) pursuant to the CIWMB-promulgated sections of this chapter but with the RWQCB named as beneficiary, to ensure closure of each classified Unit in accordance with an approved plan meeting all applicable SWRCB-promulgated requirements of this subdivision. For solid waste disposal sites, the RWQCB shall coordinate with the CIWMB, pursuant to section 20950(f).

(b) Mining Unit Closure Funding — For mining Units only, the discharger shall provide for adequate funding to pay for the costs of closure as required by the mining regulations of Article 1, Subchapter 1, Chapter 7 of this division (section 22470 et seq.). The discharger shall provide assurance of financial responsibility acceptable to the RWQCB. The RWQCB shall periodically review financial assurances for mining Units and shall modify the financial assurances as necessary to provide continued compliance with this section. If a lead agency acting under the authority of section 2774(a) of the Public Resources Code requires assurances of financial responsibility for a mining Unit, these assurances can be used to fulfill the requirement under this paragraph, provided that:

(1) the RWQCB approves the assurance; and

(2) the RWQCB is named as alternate payee.

Note:

Authority cited:
Section 1058, Water Code.

Reference:
Sections 13172,13226, 13263, and 13267, Water Code; Section 43103, Public Resources Code.

Article 2. Financial Assurance for Postclosure Maintenance

(a) This article requires operators of solid waste landfills to demonstrate the availability of financial resources to conduct postclosure maintenance activities.

(b) The requirements of this article apply to operators of all disposal facilities that are required to be permitted as solid waste landfills pursuant to Chapter 4 of this Division and have been or will be operated on or after January 1, 1988.

(c) Operators of all disposal facilities shall comply with the requirements of this Article upon application for issuance, amendment, modification, revision or review of a SWFP, commencing the effective date of this Article.

Note:

Authority cited: 
Sections 40502 and 43509, Public Resources Code. 

Reference: 
Sections 43103, 43500, 43600, 43602 and 43603, Public Resources Code.

(a) The operator of each solid waste landfill shall demonstrate financial responsibility to CalRecycle for postclosure maintenance until released from postclosure maintenance pursuant to section 21900. Except as otherwise provided in (b) and section 22225, the amount of the financial demonstration must be at least the amount of the greater of either the most recently approved or most recently submitted postclosure maintenance cost estimate, prepared pursuant to section 21840 multiplied by a factor as identified below.

(1) For each solid waste landfill without approved final closure and postclosure maintenance plans on or before July 1, 2010, the postclosure maintenance cost estimate must be calculated with a multiplier equal to thirty (30) from the time the postclosure maintenance cost estimate is initially prepared and continuing throughout the certification of closure of the entire solid waste landfill pursuant to section 21880, which will initiate the postclosure maintenance period of the closed landfill.

(2) After five (5) years of completed postclosure maintenance activities, at each postclosure maintenance plan review conducted pursuant to section 21865, the operator may submit a request to CalRecycle for approval to use a reduced multiplier. CalRecycle shall approve the use of a reduced multiplier if CalRecycle determines all the following criteria have been satisfied:

(A) The operator may only request a reduced multiplier once every five (5) years, the first request occurring no earlier than the end of the fifth (5) year of postclosure maintenance,

(B) The operator request shall be for a reduction in the multiplier in increments of five (5), but in no instance shall the multiplier be reduced below fifteen (15) until the operator is released from postclosure maintenance pursuant to section 21900, and

(C) During the five (5) year interval, the operator shall meet all of the following conditions:

1. The operator has not been subject to an enforcement order issued for the closed solid waste landfill by EA, CalRecycle, or RWQCB, including but not limited to, a Notice and Order, Cleanup and Abatement Order, Cease and Desist Order, Time Schedule Order, or similar controlling order within the current Waste Discharge Requirements of the RWQCB or SWFP and CalRecycle has not placed the closed solid waste landfill on the Inventory of Facilities Violating State Minimum Standards, except if:

a. The agency that issued the enforcement order has determined that:

i. Any required capital improvements have been satisfactorily constructed, and

ii. The activities required by the enforcement order either:

I. Are in the operation and maintenance phase, or

II. Have been satisfactorily completed, and

iii. The activities required by the enforcement order are effectively remedying the subject(s) of the enforcement order, and

b. The remaining costs of the activities required by the enforcement order are addressed in the postclosure maintenance and/or the corrective action financial assurance demonstrations.

c. If the multiplier was previously approved for reduction pursuant to a. and b., CalRecycle shall require the multiplier to be increased in increments of five (5), limited to one (1) incremental increase within a five (5) year period, to a maximum multiplier of thirty (30), if at any time subsequent to the approved reduction the operator fails to continue to meet the conditions specified in a. and b..

2. The operator has consistently performed a proactive monitoring program that has been described in the operator's postclosure maintenance plan that has been approved by EA, CalRecycle and RWQCB. The proactive monitoring program shall include, but not be limited to the following: leachate quality and quantity; landfill gas generation and migration; groundwater quality; and final cover settlement, stability, integrity, and maintenance history including repair and replacement. If the operator is already monitoring one of more of the items identified in this section due to other requirements, these may included within the proactive monitoring program. The proactive monitoring program shall ensure that the operator is obtaining information in order to determine the characteristics and trends of leachate, landfill gas, groundwater and final cover both individually and as they interact with each other in the landfill. The operator shall analyze the data to determine if postclosure maintenance activities have been and will be effective in meeting the requirements of sections 21090 and 21180. The monitoring data and evaluation shall be made available to EA, CalRecycle, and RWQCB upon request,

3. There has not been a disbursement for corrective action in accordance with section 22234, and

4. The postclosure maintenance activities and costs are consistent with the estimated postclosure maintenance activities and costs in the approved postclosure maintenance plan.

(3) At each postclosure maintenance plan review conducted pursuant to section 21865, if the multiplier was previously approved for reduction pursuant to (a)(2), CalRecycle shall require the multiplier to be increased in increments of five (5), limited to one (1) incremental increase within a five (5) period, to a maximum multiplier of thirty (30), if, during the five (5) year interval since the previous plan review, either

(A) The operator fails to meet conditions specified in (a)(2)(C)1 or 2 except:

1. if the enforcement order issued pursuant to (a)(2)(C)1 was issued due to an exceptional event unrelated to the design, operation, closure, or maintenance of the closed solid waste landfill, including, but not limited to, a wildfire or act of terrorism, and the operator petitions CalRecycle and CalRecycle determines that;

a. the enforcement order meets the conditions of 1., and

b. the operator is in compliance with the terms and conditions of that enforcement order, or

(B) The operator fails to meet the schedule to repay any disbursement for corrective action pursuant to section 22234(b).

(4) If an operator does not qualify for a reduction in the multiplier pursuant to (a)(2)(C) and is not required to increase the multiplier pursuant to (a)(3), CalRecycle shall require the multiplier to be maintained at the current multiplier.

(b) For each solid waste landfill with approved final closure and postclosure maintenance plans on or before July 1, 2010, the postclosure maintenance cost estimate multiplier must be equal to thirty (30), except that:

(1) Upon request by the operator and verification by CalRecycle, the operator may reduce the multiplier to an amount corresponding to the number of years of postclosure maintenance completed since the approval of the certification of closure of the entire solid waste landfill pursuant to section 21880, but shall not reduce the multiplier to less than fifteen (15).

(2) Upon request by the operator and verification by CalRecycle, at the end of each year of postclosure maintenance, the operator may reduce the multiplier on a one-for-one basis with the number years of postclosure maintenance completed, but shall not reduce the multiplier to less than fifteen (15).

(c) Upon transfer of ownership or operation of a closed solid waste disposal site,

(1) The new operator shall provide a financial assurance demonstration using a multiplier of thirty (30), and

(2) The new operator may submit a request to CalRecycle for approval to reduce the multiplier to the current level of financial assurances provided by the previous operator. CalRecycle shall approve the request if CalRecycle determines that all of the following criteria are met:

(A) The new operator has operated and maintained solid waste disposal sites for at least ten (10) years, is not currently in violation of an enforcement order and has not exhibited a pattern and practice of violations of applicable standards;

(B) The new operator has submitted the affidavit required by section 21200(b)(2); and

(C) The new operator has submitted satisfactory evidence that it is able to obtain a financial assurance demonstration, pursuant to section 22228 at a thirty (30) multiplier level.

Note:

Authority Cited: 
Section 40502 and 43050, Public Resources Code. 

Reference: 
Section 43103, 43501, 43509(a), 43600, 43601, 43602 and 43604, Public Resources Code.

The requirements of this section apply to dischargers who own or operate a Class II or Class III waste management unit (Unit) or a mining waste management unit (mining Unit).

(a) Non-Mining Units — At Class II and Class III Units for which the CIWMB does not require a closure fund, the RWQCB shall require the discharger to establish an irrevocable fund (or to provide other means) pursuant to the CIWMB-promulgated sections of this chapter but with the RWQCB named as beneficiary, to ensure post closure maintenance of each classified Unit in accordance with an approved plan meeting all applicable requirements of this subdivision. For solid waste landfills, the RWQCB shall coordinate with the CIWMB, pursuant to section 20950(f).

(b) Mining Units — The discharger shall provide for adequate funding to pay for the costs of closure post closure maintenance at mining Units, as required by the mining regulations of Article 1, Subchapter 1, Chapter 7 of this division (section 22470 et seq.). The discharger shall provide assurance of financial responsibility acceptable to the RWQCB. The RWQCB shall periodically review financial assurances for mining Units and shall modify the financial assurances as necessary to provide continued compliance with this section. If a lead agency acting under the authority of section 2774(a) of the Public Resources Code requires assurances of financial responsibility for a mining Unit, these assurances can be used to fulfill the requirement under this paragraph, provided that:

(1) the RWQCB approves the assurance; and

(2) the RWQCB is named as alternate payee.

Note:

Authority cited: 
Section 1058, Water Code. 

Reference:
Sections 13172,13226, 13263, and 13267, Water Code; Section 43103, Public Resources Code.

Article 3. CIWMB - Financial Assurance Requirements for Operating Liability

(a) This article requires operators of disposal facilities to demonstrate adequate financial ability to compensate third parties for bodily injury and property damage caused by facility operation prior to closure.

(b) Operators of all disposal facilities, except state and federal operators, shall comply with the requirements of this Article upon application for issuance, amendment, modification, revision or review of a SWFP, commencing July 1, 1992.

Note:

Authority cited: 
Section 40502 and 43040, Public Resources Code.

Reference:
Sections 43040 and 43103, Public Resources Code.

(a) An operator of one or more disposal facilities shall demonstrate financial responsibility for compensating third parties for bodily injury and property damage caused by any accidental occurrences, including exposures to pollution, in at least the amount of:

(1) One million dollars ($1,000,000) per occurrence; and

(2) One million dollars ($1,000,000) annual aggregate for 1 facility.

(3) Two million dollars ($2,000,000) annual aggregate for 2 facilities.

(4) Three million dollars ($3,000,000) annual aggregate for 3 facilities.

(5) Four million dollars ($4,000,000) annual aggregate for 4 facilities.

(6) Five million dollars ($5,000,000) annual aggregate for 5 or more facilities, which is the maximum coverage required.

(b) The required amounts of coverage shall be exclusive of legal defense costs, deductibles and any self-insured retention.

(c) The required amounts of coverage shall apply exclusively to an operator's facility or facilities located in the State of California.

(d) An operator may use one or more mechanisms to provide proof of financial assurance.

(e) If a trust fund or government securities is depleted to compensate third parties for bodily injuries and/or property damages caused by accidental occurrences, the operator shall, within one year of the depletion, demonstrate financial responsibility for the full amount of coverage required by (a) by replenishing the depleted mechanism(s) and/or acquiring additional financial assurance mechanism(s).

(f) If an environmental liability fund is depleted to compensate third parties for bodily injuries and/or property damages caused by an accidental occurrence, the operator shall, within one year of the depletion, demonstrate financial responsibility for the full amount of coverage required by section 22253, as if no depletion had occurred.

Note:

Authority cited: 
Section 40502 and 43040, Public Resources Code.

Reference:
Section 43040 and 43103, Public Resources Code.

Article 4. Financial Assurance Requirements for Corrective Action

(a) This article requires operators of disposal facilities to demonstrate the availability of financial resources to conduct corrective action activities as required under sections 20380(b) and 22100.

(b) The requirements of this article apply to operators of all disposal facilities that were or are required to be permitted as solid waste landfills and have been or will be operated on or after July 1, 1991.

Note:

Authority cited: 
Sections 40502 and 40508, Public Resources Code 

Reference: 
Sections 40508, and 43103, Public Resources Code; Section 258.73, Title 40 Code of Federal Regulations.

(a) Except as otherwise provided in (b) and in sections 22225 and 22226, the operator of each disposal facility shall demonstrate financial responsibility to CalRecycle for initiating and completing known or reasonably foreseeable corrective action in at least the amount of the greater of either the most recently approved or most recently submitted corrective action cost estimate prepared pursuant to section 22101(a) [Water Release Corrective Action Estimate]. Effective July 1, 2011, this paragraph does not apply to an operator that is required to comply with (b).

(b) Except as otherwise provided in sections 22225 and 22226, effective July 1, 2011, on or before the date of the first permit review or revision or plan review as determined by the schedule in section 21865, the operator of each disposal facility shall demonstrate financial responsibility to CalRecycle for initiating and completing known or reasonably foreseeable corrective action in at least the amount of the greater of:

(1) The greater of either the most recently approved or most recently submitted corrective action cost estimate, prepared pursuant to section 22101(a). [Water Release Corrective Action Estimate], or

(2) The greater of the most recently approved or most recently submitted corrective action cost estimate, prepared pursuant to section 22101(b), [Non-Water Release Corrective Action Estimate].

(c) Except as otherwise provided in sections 22225 and 22226, in determining the required amount of financial assurances under (a) and (b), if a disposal facility is subject to both known and reasonably foreseeable corrective actions, the operator must compare the amounts of the applicable known and reasonably foreseeable corrective action cost estimates and use the estimate with the greatest amount.

(d) The operator must annually adjust the estimate for inflation until the corrective action program is completed in accordance with section 20380 and section 22100.

(e) The operator must receive authorization from CalRecycle before reducing the financial mechanism used to demonstrate coverage.

Note:

Authority cited : 
Sections 40502 and 40508, Public Resources Code 

Reference: 
Sections 40508 and 43103, Public Resources Code; Section 258.73, Title 40, Code of Federal Regulations.

The requirements of this section apply to dischargers who own or operate a Class II or Class III waste management unit (Unit). This section does not apply to discharges of mining waste to mining waste management units (mining Units). [Note: The requirements of this paragraph do not preclude the RWQCB (under authority other than this subdivision) from requiring financial assurance for a known or reasonably foreseeable release at a mining Unit.] At Units for which the CIWMB does not require financial assurances for corrective action, the RWQCB shall require the discharger to establish an irrevocable fund (or to provide other means) pursuant to the CIWMB-promulgated sections of this chapter but with the RWQCB named as beneficiary, to ensure funds are available to address a known or reasonably foreseeable release from the Unit, pursuant to section 20380(b). For addressing a known or reasonably foreseeable release at a solid waste landfill, the RWQCB shall coordinate with the CIWMB, pursuant to section 20380(b) and in a manner consistent with section 20950(f).

Note:

Authority cited: 
Section 1058, Water Code. 

Reference: 
Sections 13172,13226, 13263, and 13267, Water Code; Section 43103, Public Resources Code.

Last updated: October 01, 2012