§ 130A-295.2. Financial responsibility requirements for applicants and permit holders for solid waste management facilities. - North Carolina Statutes

§ 130A‑295.2.  Financialresponsibility requirements for applicants and permit holders for solid wastemanagement facilities.

(a)        As used in thissection:

(1)        "Financialassurance" refers to the ability of an applicant or permit holder to paythe costs of assessment and remediation in the event of a release of pollutantsfrom a facility, closure of the facility in accordance with all applicablerequirements, and post‑closure monitoring and maintenance of thefacility.

(2)        "Financialqualification" refers to the ability of an applicant or permit holder topay the costs of proper design, construction, operation, and maintenance of thefacility.

(3)        "Financialresponsibility" encompasses both financial assurance and financialqualification.

(b)        The Commission mayadopt rules governing financial responsibility requirements for applicants forpermits and for permit holders to ensure the availability of sufficient fundsfor the proper design, construction, operation, maintenance, closure, and post‑closuremonitoring and maintenance of solid waste management facilities and for anycorrective action the Department may require during the active life of afacility or during the closure and post‑closure periods.

(c)        The Department mayprovide a copy of any filing that an applicant for a permit or a permit holdersubmits to the Department to meet the financial responsibility requirementsunder this section to the State Treasurer. The State Treasurer shall review thefiling and provide the Department with a written opinion as to the adequacy ofthe filing to meet the purposes of this section, including any recommendedchanges.

(d)        The Department may,in its sole discretion, require an applicant for a permit to construct afacility to demonstrate its financial qualification for the design,construction, operation, and maintenance of a facility. The Department mayrequire an applicant for a permit for a solid waste management facility toprovide cost estimates for site investigation; land acquisition, includingfinancing terms and land ownership; design; construction of each five‑yearphase, if applicable; operation; maintenance; closure; and post‑closuremonitoring and maintenance of the facility to the Department. The Departmentmay allow an applicant to demonstrate its financial qualifications for only thefirst five‑year phase of the facility. If the Department allows anapplicant for a permit to demonstrate its financial qualification for only thefirst five‑year phase of the facility, the Department shall require theapplicant or permit holder to demonstrate its financial qualification for eachsuccessive five‑year phase of the facility when applying for a permit toconstruct each successive phase of the facility.

(e)        If the Departmentrequires an applicant for a permit or a permit holder for a solid wastemanagement facility to demonstrate its financial qualification, the applicantor permit holder shall provide an audited, certified financial statement. Anapplicant who is required to demonstrate its financial qualification may do sothrough a combination of cash deposits, insurance, and binding loan commitmentsfrom a financial institution licensed to do business in the State and rated AAAby Standard & Poor's, Moody's Investor Service, or Fitch, Inc. If assets ofa parent, subsidiary, or other affiliate of the applicant or a permit holder,or a joint venturer with a direct or indirect interest in the applicant orpermit holder, are proposed to be used to demonstrate financial qualification,then the party whose assets are to be used must be designated as a jointpermittee with the applicant on the permit for the facility.

(f)         The applicant andpermit holder for a solid waste management facility shall establish financialassurance by a method or combination of methods that will ensure thatsufficient funds for closure, post‑closure maintenance and monitoring,and any corrective action that the Department may require will be availableduring the active life of the facility, at closure, and for any post‑closureperiod of time that the Department may require even if the applicant or permitholder becomes insolvent or ceases to reside, be incorporated, do business, ormaintain assets in the State. Rules adopted by the Commission may allow abusiness entity that is an applicant for a permit or a permit holder toestablish financial assurance through insurance, irrevocable letters of credit,trusts, surety bonds, or any other financial device, or any combination of theforegoing shown to provide protection equivalent to the financial protectionthat would be provided by insurance if insurance were the only mechanism used.Assets used to meet the financial assurance requirements of this section shallbe in a form that will allow the Department to readily access funds for thepurposes set out in this section. Assets used to meet financial assurancerequirements of this section shall not be accessible to the permit holderexcept as approved by the Department.

(g)        In order tocontinue to hold a permit under this Article, a permit holder must maintainfinancial responsibility and must provide any information requested by theDepartment to establish that the permit holder continues to maintain financialresponsibility. A permit holder shall notify the Department of any significantchange in the: (i) identity of any person or structure of the business entitythat holds the permit for the facility; (ii) identity of any person orstructure of the business entity that owns or operates the facility; or (iii)assets of the permit holder, owner, or operator of the facility. The permitholder shall notify the Department within 30 days of a significant change. Achange shall be considered significant if it has the potential to affect thefinancial responsibility of the permit holder, owner, or operator, or if itwould result in a change in the identity of the permit holder, owner, oroperator for purposes of either financial responsibility or environmentalcompliance review. Based on its review of the changes, the Department mayrequire the permit holder to reestablish financial responsibility and maymodify or revoke a permit, or require issuance of a new permit.

(h)        To meet thefinancial assurance requirements of this section, the owner or operator of asanitary landfill shall establish financial assurance sufficient to cover aminimum of three million dollars ($3,000,000) in costs for potential assessmentand corrective action at the facility. The Department may require financialassurance in a higher amount and may increase the amount of financial assurancerequired of a permit holder at any time based upon the types of waste disposedin the landfill, the projected amount of waste to be disposed in the landfill,the location of the landfill, potential receptors of releases from thelandfill, and inflation. The financial assurance requirements of thissubsection are in addition to the other financial responsibility requirementsset out in this section.

(i)         The Commission mayadopt rules under which a unit of local government and a solid waste managementauthority created pursuant to Article 22 of Chapter 153A of the GeneralStatutes may meet the financial responsibility requirements of this section byeither a local government financial test or a capital reserve fund requirement.(2007‑550,s. 5(a).)