62-730.226. Financial Assurance for Remedial Activities

(1) Unless otherwise exempted from corrective action financial assurance requirements pursuant to state or federal law, the following persons shall establish and maintain financial assurance for remedial activities using the appropriate forms adopted in subsection 62-730.180(6), F.A.C.:

(a) An owner or operator who is required to establish a corrective action program under 40 CFR 264.100 or 264.101 [as adopted in subsection 62-730.180(1), F.A.C.]; and

(b) An owner or operator who undertakes remedial activities pursuant to an operating permit, a postclosure permit, a corrective action permit or clean closure plan.

(2) An owner or operator as described in subsection (1) of this section shall provide a detailed written cost estimate in undiscounted current dollars. The cost estimate shall include all projected remedial activities. At a minimum, the cost estimate shall equal the estimated cost of completing such remedial activities according to the schedule and methods outlined in a plan for the remedial activities.

(3) The cost estimate for remedial activities shall:

(a) Itemize the separate costs for each year;

(b) Indicate the sum of the separate costs for each year;

(c) Indicate the sum of all the costs for remedial activities; and

(d) Be based on the costs to the owner or operator of hiring a third party to perform remedial activities at the facility according to the methods specified in the approved remedial activities plan. A third party is a party that is neither a parent nor subsidiary of the owner or operator.

(4) The cost estimate for remedial activities shall:

(a) Not incorporate any salvage value that may be gained by the sale of hazardous wastes, facility structure or equipment, land or other facility assets at the time of partial or final closures; and

(b) Incorporate a zero cost for hazardous waste that might have economic value.

(5) The owner or operator of a facility required to undertake remedial activities shall:

(a) Choose from the options described in 40 CFR 264.143 [as adopted in subsection 62-730.180(1), F.A.C.] to provide financial assurance for remedial activities and comply with the requirements of 40 CFR 264.143.

(b) Submit the appropriate forms adopted in subsections 62-730.180(6), F.A.C. Photocopies of Department supplied forms are acceptable. Retyped forms are not acceptable and will be returned.

(c) Provide financial assurance within 30 days of notification by the Department that the cost estimate is approved.

(6) The owner or operator shall adjust the cost estimate for remedial activities, including the cost estimates for each year of remedial activities, for inflation within 60 days prior to the anniversary date of the established financial instrument(s). For owners or operators using the financial test or corporate guarantee, the cost estimate for remedial activities shall be updated for inflation before submission of updated information as specified in 40 CFR 264.143(f)(3) [as adopted in subsection 62-730.180(1), F.A.C.].

(7) The owner or operator shall revise the cost estimate for remedial activities no later than 30 days after the Department approves a request to modify specified remedial activities if the change increases the cost or expected duration of remedial activities. The revision shall reflect any change in the total number of years required to perform the remedial activities and any changes in the estimated costs for each year of the remedial activities. The owner or operator shall adjust the revised costs for inflation as specified in subsection (6) of this section.

(8) An owner or operator may obtain a financial assurance variance upon a complete and adequate showing that the owner or operator is unable to obtain or provide financial assurance. Such showing shall include annual documentation of efforts to obtain or provide financial assurance; a copy of the most recent federal tax returns filed by the owner or operator; and an audited financial statement prepared on an accrual basis in accordance with generally accepted accounting principles (GAAP). The financial statement shall consist of a balance sheet, statement of income and statement of cash flows. A statement of retained earnings shall also be provided where applicable to the entity providing the financial statement.

Rulemaking Authority 403.201, 403.704, 403.721, 403.724 FS. Law Implemented 403.201, 403.704, 403.721, 403.724 FS. History–Formerly 62-730.180(6), Amended 1-29-06, 4-23-13.