[27 Pa.B. 6407]
[Continued from previous Web Page]
Subchapter B. GENERAL FACILITY STANDARDS Sec.
264a.11. Identification number and transporter license. 264a.13. General and generic waste analysis. 264a.15. General inspection and construction inspection requirements. 264a.18. Location standards. § 264a.11. Identification number and transporter license.
In addition to the requirements incorporated by reference, a person or municipality who owns or operates a hazardous waste management facility may not accept hazardous waste for treatment, storage or disposal from a transporter who has not received an identification number from the EPA and a license from the Department, except as otherwise provided. This provision does not apply to acceptance of waste generated by a small quantity generator or by a conditionally exempt small quantity generator.
§ 264a.13. General and generic waste analysis.
(Editor's Note: Most of the provisions proposed in § 264a.13 are in the existing text of § 264.12 and § 264.13.)
In addition to the requirements incorporated by reference:
(1) Except as provided in paragraphs (4) and (5), before an owner or operator treats, stores or disposes of a specific hazardous waste from a specific generator for the first time, the operator shall submit to the Department for approval, on a form provided by the Department, or on a form approved by the Department, a report which the owner or operator shall retain for 20 years. The report shall include the following information:
(i) A detailed chemical and physical analysis of the waste.
(ii) A description of the waste and the process generating the waste.
(iii) The name and address of the hazardous waste management facility.
(iv) A description of the hazardous waste management facility's treatment, storage and disposal methods.
(v) Results of liner compatibility testing.
(vi) An assessment of the impact of the waste on the hazardous waste management facility.
(vii) A copy of the generator's source reduction strategy unless exempted under § 262a.100 (relating to source reduction strategy). For generators located outside of this Commonwealth, a copy of documentation that the generator has complied with section 3005(h) of the Solid Waste Disposal Act (42 U.S.C.A. § 6925(h)).
(viii) Other information which the Department may prescribe for the Department to determine whether the waste will be treated, stored or disposed of in accordance with this chapter. The chemical and physical analysis of the waste shall be repeated under one or more of the following circumstances:
(A) When necessary to ensure that it is accurate and up-to-date.
(B) When the owner or operator is notified, or has reason to believe, that the process or operation that generates the hazardous waste has changed.
(C) For offsite facilities or onsite facilities receiving waste from offsite sources, when the results of the inspection or analysis, or both, of each hazardous waste indicates that the waste received at the facility does not match the description of the waste on the accompanying manifest or shipping paper.
(2) The owner or operator shall develop and follow a written waste analysis plan in compliance with 40 CFR 264.13 (relating to general waste analysis) which shall be submitted to the Department for approval at a time in the application process as the Department may prescribe. The plan shall be retained at the facility.
(3) The owner or operator of a facility utilizing a liner shall conduct an evaluation of the liner compatibility with the hazardous waste before accepting the waste for emplacement in a waste pile, surface impoundment or landfill unless the approval to accept the waste is granted in the facility's permit. The evaluation procedure shall meet the approval of the Department prior to its commencement. The evaluation of the liner shall consist of testing the liner in the presence of the waste for a minimum of 30 days or as otherwise approved by the Department. In lieu of actual testing, existing published or documented data on the hazardous waste or waste generated from similar processes proving the liner compatibility may be substituted if approved by the Department. The results of the evaluation of the liner compatibility shall be furnished to the Department for approval of the waste before acceptance by the facility.
(4) The Department may waive prior approval of the report specified in paragraph (1) for wastes that are in containers that are only to be stored at the facility. The Department may waive prior approval of the report only if:
(i) The Department determines that such a waiver does not pose a potential threat to human health or the environment.
(ii) The management of the wastes is allowed in the permit for the facility and properly addressed in the approved waste analysis plan for the facility.
(iii) The report is submitted to the Department within 1 week of the arrival of the wastes at the facility and a copy of the report is maintained in the operating record onsite for 20 years.
(5) Prior Department approval of the report specified in paragraph (1) is not required for offsite reclamation facilities that, under a contractual agreement, supply raw material to a generator and accept the expended material from the generator for storage prior to reclamation.
(6) In lieu of the waste and generator specific report required by paragraphs (1)--(3), the Department may accept from the operator of a treatment, storage or disposal facility a Generic Module I application for similar wastes containing similar hazardous constituents from multiple generators.
(7) An application for a Generic Module I shall include:
(i) The information required by paragraph (1). Generator specific information shall be included for each generator identified in the application.
(ii) Criteria for determining whether the wastes have similar physical and chemical characteristics and contain similar hazardous constituents.
(8) Additional generators may be added to an approved Generic Module I if the operator of the treatment, storage or disposal facility demonstrates that the waste from the new generator is consistent with the waste already approved in the Generic Module I. At least 15 days prior to accepting a waste from a new generator, the operator of the treatment, storage or disposal facility shall submit to the Department in writing, the generator specific information required by paragraph (1). The Department will not add an additional generator to the Generic Module I if the Department finds that the operator of the treatment, storage or disposal facility has not demonstrated that the waste from the new generator is consistent with that approved under the Generic Module I.
(9) A permit modification and Generic Module I requested under this section shall be accompanied by a fee, as specified in § 270a.3 (relating to payment of fees).
§ 264a.15. General inspection and construction inspection requirements.
In addition to the requirements incorporated by reference, a schedule for construction of a hazardous waste management facility shall be submitted to the Department for approval. At a minimum, the schedule shall provide for inspection and approval by the Department of each phase of construction.
§ 264a.18. Location standards.
In addition to the requirements incorporated by reference, the requirements of Chapter 269a (relating to siting) apply to hazardous waste treatment and disposal facilities.
Subchapter D. CONTINGENCY PLAN AND EMERGENCY PROCEDURES Sec.
264a.52. Content of contingency plan. 264a.56. Emergency procedures. § 264a.52. Content of contingency plan.
In addition to the requirements incorporated by reference:
(1) The contingency plan and revisions and amendments thereto shall be prepared and implemented in accordance with the Department's guidance for contingency plans.
(2) The contingency plan shall be submitted to the Department for approval at the time in the application process that the Department prescribes.
§ 264a.56. Emergency procedures.
In addition to the requirements incorporated by reference:
(1) The emergency coordinator shall immediately notify the Department by telephone at (717) 787-4343 and the National Response Center at (800) 424-8802.
(2) The report to the Department and the National response center shall include the following:
(i) The name and telephone number of the reporter.
(ii) The name and address of the facility.
(iii) The time and type of the incident (for example, release, fire).
(iv) The name and quantity of materials involved, to the extent known.
(v) The extent of injuries, if any.
(vi) The possible hazards to human health, or the environment, outside the facility.
(3) Immediately after an emergency, the emergency coordinator shall provide for treating, storing or disposing of recovered waste, contaminated soil or surface water, or any other material that results from a release, fire or explosion at the facility.
Subchapter E. MANIFEST SYSTEM, RECORDKEEPING AND REPORTING Sec.
264a.71. Use of the manifest system. 264a.72. Manifest discrepancies. 264a.75. Biennial report. 264a.78. Hazardous waste management fee. 264a.79. Documentation of hazardous waste management fee submission. 264a.80. Civil penalties for failure to submit hazardous waste management fees. 264a.81. Assessment of penalties; minimum penalties. 264a.82. Administration fees. 264a.83. Administration fees during closure. § 264a.71. Use of the manifest system.
In addition to the requirements incorporated by reference:
(1) Except as otherwise provided in 40 CFR 262.23(1) (relating to use of the manifest), an owner or operator, or the agent of the owner or operator, may not accept hazardous waste for treatment, storage or disposal unless it is accompanied by a Pennsylvania manifest.
(2) The Pennsylvania manifest is a six-part hazardous waste manifest form that is obtained from the Department or is approved by the Department.
(3) Within 30 days of the delivery, the owner or operator or the agent of the owner or operator shall send the specified copies of the manifest to the Department and generator state, unless it is known that the generator state does not desire the copies.
§ 264a.72. Manifest discrepancies.
In addition to the requirements incorporated by reference, if a significant discrepancy is not resolved within 15 days, the owner or operator shall immediately notify the appropriate regional office of the Department by telephone and send a letter to the Department describing the discrepancy and attempts to reconcile it, including a copy of the manifest or shipping paper at issue.
§ 264a.75. Biennial report.
(a) Notwithstanding the requirements incorporated by reference, the owner or operator shall submit to the Department its biennial report on EPA form 8700-13B, as modified.
(b) In addition to the requirements incorporated by reference, reports required by this section shall be maintained for the life of the facility as a part of the operating record.
§ 264a.78. Hazardous waste management fee.
(Editor's Note: The text of the existing § 264.78 (relating to hazardous waste management fee) is proposed to be renumbered as § 264a.78.)
§ 264a.79. Documentation of hazardous waste management fee submission.
(Editor's Note: The text of the existing § 264.79 (relating to documentation of hazardous waste management fee submission) is proposed to be renumbered as § 264a.79.)
§ 264a.80. Civil penalties for failure to submit hazardous waste management fees.
(Editor's Note: The text of the existing § 264.80 (relating to civil penalties for failure to submit hazardous waste management fees) is proposed to be renumbered as § 264a.80.)
§ 264a.81. Assessment of penalties; minimum penalties.
(Editor's Note: The text of the existing § 264.81 (relating to assessment of penalties; minimum penalties) is proposed to be renumbered as § 264a.81.)
§ 264a.82. Administration fees.
(Editor's Note: The text of the existing § 264.82 (relating to administration fees) is proposed to be renumbered as § 264a.82.)
§ 264a.83. Administration fees during closure.
(Editor's Note: The text of the existing § 264.113(b) (relating to administration fees--closure; time allowed for closure) is proposed to be renumbered as § 264a.83.)
Subchapter F. RELEASES FROM SOLID WASTE MANAGEMENT UNITS Sec.
264a.96. Compliance period. § 264a.96. Compliance period.
In addition to the requirements incorporated by reference:
(1) The owner or operator shall keep records of analyses and evaluations of groundwater quality, surface elevations, and flow rate and direction determinations required under this subchapter.
(2) The owner or operator shall report the following information in writing to the Department:
(i) During the first year when initial background concentrations are being established for the facility: concentrations or values of the parameters listed in 40 CFR 264.98(a) (relating to detection monitoring program) for an upgradient groundwater monitoring well within 15 days after completing a quarterly analysis and no later than 30 days after the end of a quarter.
(ii) Quarterly after the first year: concentrations or values of the parameters in 40 CFR 264.98(a) and required under 40 CFR 264.97(g) for each groundwater monitoring well, along with the required evaluations for these parameters under 40 CFR 264.97(h) (relating to detection monitoring program), within 15 days after completing a quarterly analysis and no later than 30 days after the end of a quarter.
(iii) Annually: concentrations or values of those parameters for each well which are specified by the facility's permit within 15 days of completing the annual analysis.
(iv) Annually: those determinations for the groundwater flow rate and direction specified in 40 CFR 264.99(e) (relating to compliance monitoring).
(3) The owner or operator shall report the groundwater quality required by paragraph (2) above and 40 CFR 264.97 at a monitoring point established under 40 CFR 264.95 (relating to point of compliance) in a form necessary for the determination of statistically significant increases under 40 CFR 264.98 (relating to detection monitoring program).
Subchapter H. FINANCIAL REQUIREMENTS Sec.
264a.141. Definitions. 264a.143. Financial assurance for closure. 264a.145. Financial assurance for post-closure care. 264a.147. Liability requirements. 264a.148. Incapacity of owners or operators, guarantors, or financial institutions. 264a.149. Use of state-required mechanisms. 264a.150. State assumption of responsibility. 264a.151. Working of instruments. 264a.153. Requirement to file a bond. 264a.154. Form, terms and conditions of bond. 264a.155. Special terms and conditions for surety bonds. 264a.156. Special terms and conditions for collateral bonds and bonds pledging corporate guarantee for closure. 264a.157. Phased deposits of collateral. 264a.158. Replacement of bond. 264a.159. Reissuance of permits. 264a.160. Bond amount determination. 264a.161. Cost estimate for closure and postclosure care. 264a.162. Bond amount adjustments. 264a.163. Failure to maintain adequate bond. 264a.164. Separate bonding for a portion of a facility. 264a.165. Bond release. 264a.166. Closure certification. 264a.167. Public notice and comment. 264a.168. Bond forfeiture. 264a.169. Preservation of remedies. § 264a.141. Definitions.
In addition to the terms defined in 40 CFR 264.141 (relating to definitions of terms as used in this subchapter), which are incorporated by reference, the definitions in section 103 of the act (35 P. S. § 6018.103) and Chapter 260a (relating to hazardous waste management system: general) apply to this chapter. The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Amount of liability coverage--The insurance requirements of § 264a.147 (relating to liability requirements).
Applicant--An owner or operator of a hazardous waste treatment, storage or disposal facility which is attempting to demonstrate the capability to self-insure all or part of its liabilities to third persons for personal injury and property damage from sudden or nonsudden pollution occurrences, or both.
Collateral bond--A penal bond agreement in a sum certain, payable to the Department, executed by the permittee and which is supported by the deposit with the Department of cash, negotiable bonds of the United States, the Commonwealth, the Turnpike Commission, the General State Authority, the State Public School Building Authority, or a Commonwealth municipality, Pennsylvania Bank Certificates of Deposit, or irrevocable letters of credit of a bank organized or authorized to transact business in the United States.
Final closure--Successful completion of requirements for closure and postclosure care as required by 40 CFR Part 264, Subpart G (relating to closure and postclosure).
Financial institutions--Banks organized or authorized to transact business in this Commonwealth or the United States, and insurance companies or associations licensed and authorized to transact business in this Commonwealth or designated by the Insurance Commissioner as an eligible surplus lines insurer.
Surety bond--A penal bond agreement in a sum certain, payable to the Department, executed by the permittee, and which is supported by the guarantee of payment on the bond by a corporation licensed to do business as a surety in this Commonwealth.
§ 264a.143. Financial assurance for closure.
Notwithstanding the requirements incorporated by reference, only 40 CFR 264.143(f) (relating to financial test and corporate guarantee for closure) is incorporated by reference. This subsection is incorporated by reference only to the extent that the instruments used for financial assurances for closure comply with the laws and regulations of the Commonwealth.
§ 264a.145. Financial assurance for post-closure care.
Notwithstanding the requirements incorporated by reference, 40 CFR 264.145 (relating to financial assurance for post-closure care) is not incorporated by reference.
§ 264a.147. Liability requirements.
(a) Notwithstanding the requirements incorporated by reference, 40 CFR 264.147 (relating to liability requirements) is incorporated by reference only to the extent that the demonstration of financial responsibility complies with the laws of the Commonwealth and the related regulations.
(b) In addition to the requirements incorporated by reference:
(l) A permit applicant, or permittee of a hazardous waste storage, treatment or disposal facility shall submit proof that the owner or operator has in force comprehensive general liability (ordinary public liability) insurance covering bodily injury and property damage to third parties.
(2) Insurance policies providing comprehensive general liability (ordinary public liability) insurance covering bodily injury and property damage to third parties shall follow the commercial or comprehensive forms approved by the Insurance Department and shall be one of the following:
(i) Per occurrence and aggregate limits apply separately to bodily injury and property damages.
(ii) Per occurrence and aggregate limits apply to bodily injury and property damage combined.
(3) The amount of coverage provided for bodily injury and property damage may be inclusive or exclusive of legal defense costs.
(4) For coverage where per occurrence and aggregate limits apply separately and where legal defense costs are included within the amount of coverage, the minimum amount of coverage for bodily injury shall be $1.5 million per occurrence, with an annual aggregate of $3 million and the minimum amount of coverage for property damage shall be $750,000 per occurrence, with an annual aggregate of $1.5 million.
(5) For coverage where per occurrence and aggregate limits apply separately and where legal defense costs are excluded from the face amount of coverage, the minimum amount of coverage for bodily injury shall be $1 million per occurrence, with an annual aggregate of $2 million and the minimum amount of coverage for property damage shall be $500,000 per occurrence, with an annual aggregate of $1 million.
(6) For coverage where per occurrence and aggregate limits apply to bodily injury and property damage combined, and where legal defense costs are included within the amount of coverage, the minimum amount of combined coverage for bodily injury and property damage shall be $2.25 million per occurrence, with an annual aggregate of $4.5 million.
(7) For coverage where per occurrence and aggregate limits apply to bodily injury and property damage combined and where legal defense costs are excluded from the amount of coverage, the minimum amount of combined coverage for bodily injury and property damage shall be $1.5 million per occurrence, with an annual aggregate of $3 million.
(8) The insurance policy shall provide for the payment of claims up to the full amount of coverage regardless of any deductible amount applicable to the policy. If the policy provides the insurer with a right of reimbursement by the insured for payment of the deductible amount, the insurer shall be liable for payment of the deductible amount. If the policy does not provide the insurer with a right of reimbursement or similar methods of recoupment, the insured shall provide additional coverage amounts by the purchase of excess coverage for the deductible amount.
§ 264a.148. Incapacity of owners or operators, guarantors or financial institutions.
In addition to the requirements incorporated by reference, an owner or operator or guarantor of a corporate guarantee shall also notify the Department by certified mail in accordance with the provisions applicable to notifying the regional administrator of the EPA.
§ 264a.149. Use of state-required mechanisms.
Notwithstanding the requirements incorporated by reference, 40 CFR 264.149 (relating to use of state-required mechanisms) is not incorporated by reference.
§ 264a.150. State assumption of responsibility.
Notwithstanding the requirements incorporated by reference, 40 CFR 264.150 (relating to state assumption of responsibility) is not incorporated by reference.
§ 264a.151. Wording of instruments.
Notwithstanding the requirements incorporated by reference, 40 CFR 264.151 (relating to wording of the instruments) is incorporated by reference only to the extent consistent with the laws and regulations of the Commonwealth. Revisions to financial tests or wording of the standard instruments in 40 CFR 264.151 that are substantially similar to the intent of the Federal text may be approved by the Department as necessary to conform with state law and regulations.
(Editor's Note: Proposed sections 264a.153--264a.169 include provisions of existing Chapter 267, Subchapter B (relating to bonding), which have been updated and conformed to Federal provisions.)
§ 264a.153. Requirement to file a bond.
(a) Hazardous waste storage, treatment and disposal facilities which have been permitted under the act, or which are being treated as having been issued a permit under the act, shall file a bond in accordance with this subchapter, payable to the Department.
(b) The Department will not issue a new, revised, amended, modified or renewed permit for the storage, treatment or disposal of hazardous waste unless the applicant has filed with the Department a bond under this subchapter, payable to the Department, on a form prepared and provided by or approved by the Department, and the bond has been approved by the Department.
(c) An applicant for a new, revised, amended, modified or renewed permit may not disturb surface acreage, start construction of facilities for the storage, treatment or disposal of hazardous waste, or accept hazardous waste prior to receipt from the Department of approval of bond and issuance of a permit to conduct a hazardous waste storage, treatment or disposal operation.
(d) A hazardous waste storage, treatment or disposal facility which is permitted or is being treated as having been issued a permit, shall cease accepting hazardous waste unless the permittee has submitted a bond under this part. The Department will review and determine whether or not to approve the bond within 1 year after submittal. If, on review, the Department determines the permittee has submitted an insufficient bond amount, the Department will require the permittee to deposit additional bond amounts under § 264a.162 (relating to bond amount adjustments).
§ 264a.154. Form, terms and conditions of bond.
(a) The Department will accept one of the following types of bond:
(1) A surety bond.
(2) A collateral bond.
(3) A bond pledging a corporate guarantee.
(4) A phased deposit collateral bond as provided in § 264a.157 (relating to phased deposits of collateral).
(b) The Department will prescribe and furnish the forms for bond instruments.
(c) Bonds shall be payable to the Department and conditioned upon the faithful performance of the requirements of the act, The Clean Streams Law (35 P. S. §§ 691.1--691.1001), the Surface Mining Conservation and Reclamation Act (52 P. S. §§ 1396.1--1396.4c, 1396.4e and 1396.15c--1396.25), the Air Pollution Control Act (35 P. S. §§ 4001--4015), the Dam Safety and Encroachments Act (32 P. S. §§ 693.1--693.27), the regulations adopted thereunder, the terms and conditions of any permit issued thereunder, orders of the Department and amendments, revisions and changes to the acts, the regulations and the terms and conditions of the hazardous waste storage, treatment and disposal facility permit as may be lawfully made in the future.
(d) The bond shall cover the hazardous waste storage, treatment or disposal operations from the initiation of the operations until the bond is released as provided in this chapter. The bond shall cover all operations and activities conducted within the permitted area and all effects caused by the hazardous waste activities within or without the permit area.
(e) Bonds will be reviewed for legality and form according to established Commonwealth procedures.
§ 264a.155. Special terms and conditions for surety bonds.
(a) The Department will not accept the bond of a surety company which has failed or unduly delayed in making payment on a forfeited surety bond.
(b) The Department will accept only the bond of a surety authorized to do business in this Commonwealth.
(c) The surety may cancel the bond by sending written notice of cancellation by certified mail to the permittee and the Department. Cancellation may not take effect until 120 days after receipt of the notice of cancellation by the principal and the Department, as evidenced by the return receipts. Within 60 days after receipt of the notice of cancellation the permittee shall provide the Department with a replacement bond under § 264a.158 (relating to replacement of bond). Failure of the permittee to provide a replacement bond within the 60-day period shall constitute grounds for forfeiture of the existing bond under § 264a.168 (relating to bond forfeiture).
(d) The Department will not accept surety bonds from a surety company for a permittee, on all permits held by the permittee, in excess of the company's single risk limit as provided by The Insurance Company Law of 1921 (40 P. S. §§ 341--991), unless the surety has complied with the provisions of the Insurance Company Act of 1921 )40 P. S. §§ 1--297.4) for accepting risk above its single risk limit.
(e) The bond shall provide that full payment will be made on the bond within 30 days of receipt of a notice of forfeiture by the surety notwithstanding judicial or administrative appeal of the forfeiture and that the amount shall be confessed to judgment upon forfeiture.
(f) The bond shall provide that the surety and the permittee shall be jointly and severally liable for payment of the bond amount.
§ 264a.156. Special terms and conditions for collateral bonds and bonds pledging corporate guarantee for closure.
(a) The Department will obtain possession of and keep in custody collateral deposited by the permittee until authorized for release or replacement as provided in this subchapter.
(b) The Department will value governmental securities for both current market value and face value. For the purpose of establishing the value of the securities for bond deposit, the Department will use the lesser of current market value or face value. Government securities shall be rated at least BBB by Standard and Poor's or Baa by Moody's.
(c) Collateral bonds pledging Pennsylvania bank certificates of deposit shall be subject to the following conditions:
(1) The Department will require that certificates of deposit be assigned to the Department, in writing, and the assignment recorded upon the books of the issuing institution.
(2) The Department may accept an individual certificate of deposit for a denomination in excess of $100,000, or the maximum insurable amount as determined by the Federal Deposit Insurance Corporation (FDIC) or is otherwise secured under Pennsylvania law.
(3) The Department will require the issuing institution to waive all rights of setoff or liens which it has or might have against the certificates.
(4) The Department will only accept automatically-renewable certificates of deposit.
(5) The Department will require that the certificates of deposit are assigned to the Department to assure that the Department will be able to liquidate the certificates prior to maturity, upon forfeiture, for the amount of the bond determined under this chapter.
(6) The Department will accept certificates of deposit only from banks or banking institutions licensed, chartered or otherwise authorized to do business in the United States.
(7) The Department will not accept certificates of deposit from banks which have failed or delayed in making payment on defaulted certificates of deposit.
(d) Collateral bonds pledging a bank letter of credit shall be subject to the following conditions:
(1) The letter of credit shall be a standby or guarantee letter of credit issued only by a bank organized or authorized to do business in the United States, examined by a State or Federal agency and Federally insured or equivalently protected.
(2) The letter of credit may not have been issued without a credit analysis substantially equivalent to a credit analysis applicable to a potential borrower in an ordinary loan situation. A letter of credit so issued shall be supported by the customer's unqualified obligation to reimburse the issuer for monies paid under the letter of credit.
(3) The letter of credit may not have been issued for a customer when the amount of the letter of credit, aggregated with other loans and credits extended to the customer, exceeds the issuer legal lending limits for that customer as defined in the United States Banking Code (12 U.S.C.A. §§ 21--220).
(4) The letter of credit shall be irrevocable and shall be so designated. The Department may accept a letter of credit for which a limited time period is stated if the following conditions are met and are stated in the credit:
(i) The letter of credit is automatically renewable for additional time periods, unless the bank gives at least 90 days prior written notice to the Department and the customer of its intent to terminate the credit at the end of the current time period.
(ii) The Department has the right to draw upon the credit before the end of the time period, if the customer fails to replace the letter of credit with other acceptable bond guarantee within 30 days of the bank's notice to terminate the credit.
(5) Letters of credit shall name the Department as the beneficiary and shall be payable to the Department, upon demand, in part or in full, upon presentation of the Department's drafts at sight. The Department's right to draw upon the letter of credit will not require documentary or other proof by the Department that the customer has violated the conditions of the bond, the permit or another requirement of this chapter.
(6) Letters of credit are subject to 13 Pa.C.S. (relating to the Uniform Commercial Code) and the latest revision of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce. The Department may accept 13 Pa.C.S. Division 5 (relating to letters of credit) in effect in the state of the issuer.
(7) The issuing bank shall waive the rights to setoff or liens which it has or might have against the letter of credit.
(8) The Department will not accept letters of credit from a bank which has failed or delayed in making payment on a letter of credit previously submitted as collateral to the Department.
(e) Bonds pledging a corporate guarantee for closure shall be subject to the requirements of 40 CFR 264.143(f) (relating to financial test and corporate guarantee for closure).
§ 264a.157. Phased deposits of collateral.
(a) A permit applicant or a permittee may post a collateral bond for a hazardous waste storage, treatment or disposal facility which will be continuously operated or used for at least 10 years from the date of issuance of the permit or permit amendment, according to all of the following requirements:
(1) The permittee shall submit a collateral bond to the Department.
(2) The permittee shall deposit $10,000 or 25%, whichever is greater, of the total amount of bond determined in this chapter in approved collateral with the Department.
(3) The permittee shall submit a schedule agreeing to deposit 10% of the remaining amount of bond, in approved collateral in each of the next 10 years.
(b) The permit applicant or permittee shall deposit the full amount of bond required for the hazardous waste storage, treatment or disposal facility within 30 days of receipt of a written demand by the Department to accelerate deposit of the bond. The Department will make the demand when one of the following occurs:
(1) The permittee has failed to make a deposit of bond amount when required by the schedule for the deposits.
(2) The permittee has violated the requirements of the act, this article, the terms and conditions of the permit or orders of the Department and has failed to correct the violations within the time required for the correction.
(c) Interest earned by collateral on deposit shall be accumulated and becomes part of the bond amount until the operator completes deposit of the requisite bond amount in accordance with the schedule of deposit. Interest so accumulated may not offset or diminish the amount required to be deposited in each of the succeeding years set forth in the schedule of deposit, except that in the last year in which a deposit is due, the amount to be deposited shall be adjusted by applying the total accumulated interest to the amount to be deposited as established by the schedule of deposit.
§ 264a.158. Replacement of bond.
(a) The Department may allow permittees to replace existing surety or collateral bonds with other surety or collateral bonds if the liability which has accrued against the permittee of the hazardous waste storage, treatment or disposal facility is transferred to the replacement bonds. The bond amount for the replacement bond will be determined under this chapter, but in no case may it be less than the amount on deposit with the Department.
(b) The Department will not release existing bonds until the permittee has submitted and the Department has approved acceptable replacement bonds. A replacement of bonds under this section may not constitute a release of bond under this chapter.
(c) Within 60 days after approval of acceptable replacement bonds, the Department will take appropriate action to initiate the release of existing surety or collateral bonds being replaced by the permittee.
§ 264a.159. Reissuance of permits.
Before a permit is reissued to a new permittee, the new permittee shall post a new bond in an appropriate amount determined by the Department under this chapter but in no case less than the amount of bond on deposit with the Department, in the new permittee's name, assuming all accrued liability for the hazardous waste storage, treatment or disposal facility.
§ 264a.160. Bond amount determination.
(a) The Department will determine bond amount requirements for each hazardous waste storage, treatment and disposal facility based upon the total estimated cost to the Commonwealth to complete final closure of the facility in accordance with the requirements of applicable statutes, this article, the terms and conditions of the permit and orders issued thereunder by the Department and to take measures that are necessary to prevent adverse effects upon the environment during the life of the facility and after closure until released as provided by this chapter.
(b) This amount shall be based on the requirements of 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and cost estimate for post-closure care).
§ 264a.161. Cost estimate for closure and postclosure care.
The permittee or permit applicant shall prepare a detailed written estimate of the cost of closing the facility and providing postclosure care in accordance with the provisions of 40 CFR 264.142 and 264.144 (relating to cost estimate for closure and cost estimate for post-closure care).
§ 264a.162. Bond amount adjustments.
(a) The permittee shall deposit additional amounts of bond, at any time, upon demand of the Department. The Department will require a permittee to deposit additional amounts of bond if one of the following occurs:
(1) The permit is amended to increase acreage, to change the kind of waste handled or for another reason which requires an additional amount of bond determined under 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and cost estimate for post-closure care).
(2) Inflationary cost factors have exceeded the estimate used for the original bond amount determination under 40 CFR 264.142 and 264.144.
(3) The permit is to be renewed or reissued, or the bond on deposit is to be replaced, which requires an additional amount of bond determined under 40 CFR 264.142 and 264.144.
(4) The Department determines that an additional amount of bond is required as determined by 40 CFR 264.142 and 264.144 to meet the requirements of applicable statutes, this chapter and the terms and conditions of the permit or orders of the Department.
(b) A permit applicant or permittee may request reduction of the required bond amount upon submission of satisfactory evidence proving that the method of operation or other circumstances will significantly reduce the maximum estimated cost to the Department of completing final closure and taking necessary measures to prevent adverse effects on the environment. If the request is made after permit issuance, it will be considered a request for bond release.
§ 264a.163. Failure to maintain adequate bond.
If a permittee fails to post additional bond within 60 days after receipt of a request by the Department for additional bond amounts under § 264a.162 (relating to bond amount adjustments), or fails to make timely deposits of bond in accordance with the schedule submitted under § 264a.157 (relating to phased deposits of collateral), the Department will issue a notice of violation to the permittee, and if the permittee fails to deposit the required bond amount within 15 days of the notice, the Department will issue a cessation order for all of the hazardous waste storage, treatment and disposal facilities operated by the permittee and take additional actions that may be appropriate, including suspending or revoking permits.
§ 264a.164. Separate bonding for a portion of a facility.
(a) The Department may require a separate bond to be posted for a part of a hazardous waste storage, treatment or disposal facility if that part of the facility can be separated and identified from the remainder of the facility and the bond liability for that part will continue beyond the time provided for the remainder of the facility, or the Department has determined that separate bonding of the facility is necessary to administer and apply applicable statutes, this article, the terms and conditions of the permit or orders of the Department.
(b) If the Department requires a separate bond for part of a facility, the original bond amount for the facility may be adjusted under § 264a.162 (relating to bond amount adjustments).
§ 264a.165. Bond release.
(a) The permittee may file a written application with the Department requesting release of all or part of the bond amount posted for a hazardous waste storage, treatment or disposal facility during the operation of the facility as part of a request for bond adjustment under § 264a.162 (relating to bond amount adjustments), upon completion of closure of the facility and upon expiration of the postclosure care period of liability as specified in 40 CFR Part 264, Subpart G (relating to closure and postclosure care).
(b) The application for bond release shall contain all of the following:
(1) State the name of the permittee and identify the hazardous waste storage, treatment or disposal facility for which bond release is sought.
(2) State the total amount of bond in effect for the facility and the amount for which release is sought.
(3) State in specific detail the reasons why bond release is requested including, but not limited to, the closure, postclosure care and abatement measures taken, the permit amendments authorized or the change in facts or assumptions made during the bond amount determination which demonstrate and would authorize a release of part or all of the bond deposited for the facility.
(4) Provide a revised cost estimate for closure and postclosure care in accordance with 40 CFR 264.142 and 264.144 (relating to cost estimate for closure; and postclosure care).
(5) Provide other information as may be required by the Department.
(c) The Department will evaluate the bond release request as if it were a request for a new bond amount determination under 40 CFR 264.142 and 264.144. If the new bond amount determination would require less bond for the facility than the amount already on deposit, the Department will release the portion of the bond amount which is not required for the facility. If the new bond amount determination would require an additional amount of bond for the facility, the Department will require the additional amount to be deposited for the facility.
(d) The Department will not release a bond amount deposited for a facility if the release would reduce the total remaining amount of bond to an amount which would be insufficient for the Department to complete closure and postclosure care and to take measures that may be necessary to prevent adverse effects upon the environment or public health, safety or welfare in accordance with applicable statutes, this chapter, the terms and conditions of the permits and orders of the Department.
(e) The Department will make a decision on a bond release application within 6 months after receipt unless additional time is authorized by the permittee.
(f) The Department will not release a bond amount for a facility which is causing adverse effects on the public health, safety or welfare or the environment, creating a public nuisance, or in violation of this chapter, the act or the statutes set forth in section 505(a) of the act (35 P. S. § 6018.505(a)).
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