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DEPARTMENT OF ENVIRONMENTAL QUALITY

 

DIVISION 95

SOLID WASTE: LAND DISPOSAL SITES OTHER THAN 
MUNICIPAL SOLID WASTE LANDFILLS
 

340-095-0001

Applicability

(1) For purposes of this Division, "non-municipal land disposal site" means a land disposal site other than:

(a) A municipal solid waste landfill or a unit associated with the operation of such a landfill;

(b) A facility listed in OAR Chapter 340, Division 96.

(2) OAR Chapter 340, Division 95 applies to all non-municipal land disposal sites. Non-municipal land disposal sites must also comply with applicable provisions in OAR Chapter 340, Divisions 93, 96 and 97.

Stat. Auth.: ORS 459.005 - ORS 459.418 & ORS 459A.100 - ORS 459A.120 
Stats. Implemented: ORS 015 
Hist.: DEQ 5-1993, f. & cert. ef. 3-10-93

340-095-0010

Location Restrictions

(1) Except as otherwise provided in OAR Chapter 340 Division 95, any person who designs, constructs, maintains, or operates any non-municipal land disposal site must do so in conformance with the location requirements of this rule.

(2) Endangered Species. No person shall establish, expand or modify a non-municipal land disposal site in a manner that will cause or contribute to the actual or attempted:

(a) Harassing, harming, pursuing, hunting, wounding, killing, trapping, capturing or collecting of any endangered or threatened species of plants, fish, or wildlife;

(b) Direct or indirect alteration of critical habitat which appreciably diminishes the likelihood of the survival and recovery of threatened or endangered species using that habitat.

(3) Floodplains. No person shall establish, expand or modify a non-municipal land disposal site in a floodplain in a manner that will allow the facility to restrict the flow of the base flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to human life, wildlife or land or water resources.

(4) Sensitive Hydrogeological Environments. No person shall establish or expand a non-municipal land disposal site in a gravel pit excavated into or above a water table aquifer or other sole source aquifer, or in a wellhead protection area, where the Department has determined that:

(a) Groundwater must be protected from pollution because it has existing or potential beneficial uses (OAR 340-040-0020); and

(b) Existing natural protection is insufficient or inadequate to minimize the risk of polluting groundwater.

Stat. Auth.: ORS 459.045, ORS 459A.025, ORS 468.020 & ORS 468.020 
Stats. Implemented: ORS 459.015 & ORS 459.205 – ORS 459.245 
Hist.: DEQ 41, f. 4-5-72, ef. 4-15-72; DEQ 26-1981, f. & ef. 9-8-81; DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93; Renumbered from 340-061-0040; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 27-1998, f. & cert. ef. 11-13-98

340-095-0020

Operating Criteria

(1) Except as otherwise provided in OAR Chapter 340 Division 95, any person who maintains or operates any non-municipal land disposal site must do so in conformance with the operating requirements of this rule.

(2) Permitted Wastes. Only the waste types listed in the solid waste permit or the operations plan, or wastes previously approved by the Department in writing, may be accepted for disposal. In certain cases the Department may also require approval of the source(s) of the waste. Written requests for authorization to accept additional waste types shall be submitted to and approved by the Department prior to disposal of such waste. Approval of requests for authorization for one-time disposal may be granted by the Department in writing. Requests for authorization for more than one-time disposal shall require a permit modification by the Department. Requests for authorization to accept additional waste types shall include the following information:

(a) Waste characterization with detailed physical and chemical characteristics of the waste type such as percent solids, results of the paint filter test, Toxicity Characteristic Leaching Procedure ("TCLP") results, polychlorinated biphenyl content, and test results for ignitability, reactivity, corrosivity, etc., as appropriate;

(b) The approximate volume of waste to be disposed of on a daily and yearly basis;

(c) The source of the wastes and a description of the processes which generated the waste;

(d) Special handling and disposal procedures, to be incorporated into the Special Waste Management Plan pursuant to subsection (3)(j) of this rule.

(3) Operations Plan. Each permittee shall maintain a detailed operations plan which describes the proposed method of operation and progressive development of trenches and/or landfill lifts or cells. Said plan shall include at least the following:

(a) A description of the types and quantities of waste materials that will be received (estimated maximum daily and average annual quantities);

(b) A program for detecting and preventing the disposal at the facility of regulated hazardous wastes and polychlorinated biphenyl wastes and any other unacceptable wastes as determined by the Department;

(c) Methods of waste unloading, placement, compaction and covering;

(d) Areas and/or procedures to be used for disposal of waste materials during inclement weather;

(e) Types and weights of equipment to be used for site operation;

(f) Detailed description of any salvaging or resource recovery operations to take place at the facility;

(g) Such measures for the collection, containment, treatment or disposal of leachate as may be required;

(h) Provisions for managing surface drainage;

(i) Measures to be used for the control of fire, dust, decomposition gases, birds, disease vectors, scavenging, access, flooding, erosion, and blowing debris, as pertinent; and

(j) A Special Waste Management Plan if certain wastes are received, which due to their unique characteristics, require special handling. Such wastes may present personnel safety hazards, create odor and vector problems, generate excessive leachate, lead to excessive settlement, puncture or tear the landfill liner, pose a fire hazard, or increase the toxicity of landfill leachate. The Special Waste Management Plan shall describe special acceptance, waste characterization, handling, storage, recordkeeping and disposal procedures for those materials. Wastes to be included in a special Waste Management Plan include:

(A) Cleanup materials contaminated with hazardous substances pursuant to OAR 340-093-0170;

(B) Wastes requiring special management pursuant to OAR 340-093-0190(1);

(C) Additional wastes authorized for disposal by the Department pursuant to section (2) of this rule; and

(D) Large dead animals, sewage sludges and grit, septage, industrial solid wastes and other materials which may be hazardous or difficult to manage by virtue of their character or large volume, unless special provisions for such disposal are otherwise approved by the Department.

(4) Open Burning. No person shall conduct the open burning of solid waste at a non-municipal land disposal site. The Department may authorize the infrequent burning of land-clearing debris such as tree stumps and limbs, brush and other wood waste, except that open burning of industrial wood waste is prohibited.

(5) Leachate. Any person constructing, operating or maintaining a non-municipal land disposal site shall ensure that leachate production is minimized. Where required by the Department, leachate shall be collected and treated or otherwise controlled in a manner approved by the Department.

(6) Surface Water:

(a) No person shall cause a discharge of pollutants from a non-municipal land disposal site into public waters including wetlands, in violation of any applicable state or federal water quality rules or regulations;

(b) Each non-municipal land disposal site permittee shall ensure that surface runoff and leachate seeps are controlled so as to minimize discharges of pollutants into public waters.

(7) Surface Drainage Control. Each permittee shall ensure that:

(a) The non-municipal land disposal site is maintained so that drainage will be diverted around or away from active and completed operational areas;

(b) The surface contours of the non-municipal land disposal site are maintained such that ponding of surface water is minimized.

(8) Endangered Species. No person shall operate a non-municipal land disposal site in a manner that will affect endangered species in any of the ways specified in OAR 340-095-0010(2).

(9) Gas Control:

(a) No person shall operate or maintain a non-municipal land disposal site except in conformance with the provisions for gas control in OAR 340-095-0030(4);

(b) Monitoring:

(A) Where the Department finds that a non-municipal land disposal site's location and geophysical condition indicate that there is a reasonable probability of potential adverse effects on public health or the environment, the Department may require a permittee to provide monitoring wells to determine the effects of the site on the concentration of methane gas in the soil;

(B) If the Department determines that monitoring wells are required at a non-municipal land disposal site, the permittee shall provide and maintain the wells at the locations specified by the Department and shall submit a copy of the geologic log and record of well construction to the Department within 30 days of completion of construction;

(C) Where the Department determines that self-monitoring is practicable, the Department may require that the permittee collect and analyze samples of gas, at intervals specified and in a manner approved by the Department, and submit the results in a format and within a time frame specified by the Department;

(D) The Department may require permittees who do self-monitoring to periodically split samples with the Department for the purpose of quality control.

(10) Floodplains. No permittee of a non-municipal land disposal site located in a floodplain shall allow the facility to restrict the flow of the base flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste so as to pose a hazard to human life, wildlife or land or water resources.

(11) Cover Material. Each permittee shall provide adequate quantities of cover material of a type approved by the Department for the covering of deposited solid waste at a non-municipal land disposal site in accordance with the approved operations plan, and permit conditions and OAR Chapter 340 Divisions 93 and 95.

(12) Cover Frequency. Each permittee shall place a compacted layer of at least six inches of approved cover material over the compacted wastes in a non-municipal land disposal site at intervals specified in the permit. An applicant may propose and the Department may approve alternative cover designs or procedures which are equally protective. In evaluating such a proposal for alternative cover design, procedures or frequency, the Department may consider such factors as the volume and types of waste received, hydrogeologic setting of the facility, climate, proximity of residences or other occupied buildings, site screening, availability of equipment and cover material, any past operational problems and any other relevant factor.

(13) Access Roads. Each permittee shall ensure that roads from the non-municipal land disposal site property line to the active operational area and roads within the operational area are constructed and maintained so as to minimize traffic hazards, dust and mud and to provide reasonable all-weather access for vehicles using the site.

(14) Access Control. Each permittee shall insure that the non-municipal land disposal site has a perimeter barrier or topographic constraints adequate to restrict unauthorized entry.

(15) Site Screening. To the extent practicable, each permittee shall screen the active non-municipal land disposal site area from public view by trees, shrubbery, fence, stockpiled cover material, earthen berm, or other appropriate means.

(16) Fire Protection:

(a) Each non-municipal land disposal site permittee shall make arrangements with the local fire control agency to immediately acquire their services when needed and shall provide adequate on-site fire protection as determined by the local fire control agency;

(b) In case of accidental fires at the site, the operator shall be responsible for initiating and continuing appropriate fire-fighting methods until all smoldering, smoking and burning ceases;

(c) No operator shall permit the dumping of combustible materials within the immediate vicinity of any smoldering, smoking or burning conditions at a non-municipal land disposal site, or allow dumping activities to interfere with fire-fighting efforts.

(17) Signs. Each permittee of a non-municipal land disposal site open to the public shall post a clearly visible and legible sign or signs at the entrance to the disposal site specifying the name of the facility, the hours and days the site is open to the public, an emergency phone number and listing the general types of materials which either will be accepted or will not be accepted.

(18) Truck Washing Facilities. Each permittee shall ensure that any truck washing areas at a non-municipal land disposal site are hard surfaced and that any on-site disposal of wash waters is accomplished in a manner approved by the Department.

(19) Sewage Disposal. Each non-municipal land disposal site permittee shall ensure that any on-site disposal of sewage is accomplished in a manner approved by the Department.

(20) Salvage: A permittee may conduct or allow the recovery of materials such as metal, paper and glass from the non-municipal land disposal site only when such recovery is conducted in a planned and controlled manner approved by the Department in the facility's operations plan.

(21) Litter:

(a) Each permittee shall ensure that effective measures such as compaction, the periodic application of cover material or the use of portable fencing or other devices are taken to minimize the blowing of litter from the active working area of the non-municipal land disposal site;

(b) Each non-municipal land disposal site operator shall collect windblown materials from the disposal site and adjacent property and properly dispose of same at sufficient frequency to prevent aesthetically objectionable accumulations.

(22) Vector and Bird Control:

(a) Each permittee shall ensure that effective means such as the periodic application of earth cover material or other techniques as appropriate are taken at the non-municipal land disposal site to control or prevent the propagation, harborage, or attraction of flies, rodents, or other vectors and to minimize bird attraction;

(b) No permittee of a non-municipal land disposal site disposing of putrescible wastes that may attract birds and which is located within 10,000 feet (3,048 meters) of any airport runway used by turbojet aircraft or within 5,000 feet (1,524 meters) of any airport used by only piston-type aircraft shall allow the operation of the landfill to increase the likelihood of bird/aircraft collisions.

(23) Weighing. The Department may require that non-municipal land disposal site permittees provide scales and weigh incoming loads of solid waste, to facilitate solid waste management planning and decision making and accurate reporting.

(24) Records. The Department may require records and reports it considers reasonably necessary to ensure compliance with conditions of a permit, OAR Chapter 340 Divisions 93 through 97 or provisions of OAR Chapter 340, Divisions 90 and 91. All records must be kept for a minimum of five years. In the case of a change in ownership of the permitted facility, the new permittee is responsible for ensuring that the records are transferred from the previous permittee and maintained for the required five years. At a minimum, the following records are required:

(a) Daily listing by load of the volume or weight of solid waste received; and

(b) Monthly and quarterly accumulations of amounts of daily waste received.

(25) Modifications in Name or Address. The permittee or registrant shall notify the Department of any name or address change of the owner or operator of the facility within ten days of the change.

Stat. Auth.: ORS 459.045, ORS 459A.025 & ORS 468.020 
Stats. Implemented: ORS 459.015 & ORS 459.205 – ORS 459.24 
Hist.: DEQ 41, f. 4-5-72, ef. 4-15-72; DEQ 26-1981, f. & ef. 9-8-81; DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93; Renumbered from 340-061-0040; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 27-1998, f. & cert. ef. 11-13-98

340-095-0030

Design Criteria

(1) Except as otherwise provided in OAR Chapter 340, Division 95, any person who designs, constructs, expands or modifies any non-municipal land disposal site must do so in conformance with the design requirements of this rule.

(2) Plan Design Requirements. Unless an exemption has been granted under OAR 340-093-0070(4), in addition to the requirements of OAR 340-093-0070, detailed plans and specifications for non-municipal land disposal sites shall include but not be limited to:

(a) Topographic maps which show natural features of the site; the location and design of all pertinent existing and proposed structures, such as berms, dikes, surface drainage control devices, access and on-site roads, water and waste water facilities, gas control devices, monitoring wells, fences, utilities, maintenance facilities, shelter and buildings; legal boundaries and property lines, and existing contours and projected finish grades. Unless otherwise approved by the Department, the scale of the plan drawings shall be no greater than one inch equals 200 feet, with contour intervals not to exceed five feet. Horizontal and vertical controls shall be established and tied to an established bench mark located on or near the site. Where the Department deems it essential to ensure compliance with OAR Chapter 340, Divisions 93 and 95, the bench mark shall be referenced to the Oregon State Plane Coordinate System, Lambert Projection;

(b) If a landfill, a minimum of two perpendicular cross section drawings through the non-municipal land disposal site. Each cross section shall illustrate existing grade, excavation grade, proposed final grade, any additions for groundwater protection, water table profile and soil profile. Additional cross sections shall be provided as necessary to adequately depict underlying soils, geology and landfill contours, and to display the design of environmental protection devices or structures;

(c) A description of the design assumptions and methods used to forecast flows and to determine the sizing of pumps, pipes, ditches, culverts and other hydraulic equipment used for the collection, treatment and disposal of leachate and for the control of surface drainage;

(d) A detailed operations plan pursuant to OAR 340-095-0020(3) and timetable which describes the proposed method of operation and progressive development of the non-municipal land disposal site, such as trenches and/or landfill lifts or cells.

(3) Leachate. Any person designing or constructing a non-municipal land disposal site shall ensure that leachate production is minimized. Where required by the Department, leachate shall be collected and treated or otherwise controlled in a manner approved by the Department. Leachate storage treatment impoundments shall be located, designed, constructed and monitored, at a minimum, to the same level of environmental protection as the land disposal site.

(4) Gas Control. No person shall establish, expand or modify a non-municipal land disposal site such that:

(a) The concentration of methane (CH4) gas at the landfill exceeds 25 percent of its lower explosive limit in facility structures (excluding gas control or gas recovery system components) or its lower explosive limit at the property boundary;

(b) Malodorous decomposition gases become a public nuisance.

(5) Surface Drainage Control. Each permittee shall ensure that the non-municipal land disposal site is designed and constructed so that drainage will be diverted around or away from active and completed operational areas.

Stat. Auth.: ORS 459.045, ORS 459A.100 - ORS 459A.120 & ORS 468.020 
Stats. Implemented: ORS 459.015 & ORS 459.045 
Hist.: DEQ 41, f. 4-5-72, ef. 4-15-72; DEQ 26-1981, f. & ef. 9-8-81; DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93; Renumbered from 340-061-0040; DEQ 10-1994, f. & cert. ef. 5-4-94

340-095-0040

Groundwater Monitoring and Corrective Action

(1) Groundwater:

(a) Each non-municipal land disposal site permittee shall ensure that:

(A) The introduction of any substance from the land disposal site into an underground drinking water source does not result in a violation of any applicable federal or state drinking water rules or regulations beyond the solid waste boundary of the land disposal site or an alternative boundary specified by the Department;

(B) The introduction of any substance from the land disposal site into an aquifer does not impair the aquifer's recognized beneficial uses, beyond the solid waste boundary of the land disposal site or an alternative boundary specified by the Department, consistent with OAR Chapter 340, Division 40 and any applicable federal or state rules or regulations.

(b) Where monitoring is required, monitoring wells shall be placed at Department-approved locations between the solid waste boundary and the property line if adequate room exists;

(c) The Department may specify an alternative boundary based on a consideration of all of the following factors:

(A) The hydrogeological characteristics of the facility and surrounding land;

(B) The volume and physical and chemical characteristics of the leachate;

(C) The quantity and directions of flow of groundwater;

(D) The proximity and withdrawal rates of groundwater users;

(E) The availability of alternative drinking water supplies;

(F) The existing quality of the groundwater including other sources of contamination and their cumulative impacts on the groundwater; and

(G) Public health, safety, and welfare effects.

(2) Monitoring:

(a) Where the Department finds that a non-municipal land disposal site's location and geophysical condition indicate that there is a reasonable probability of potential adverse effects on public health or the environment, the Department may require a permittee to provide monitoring wells at Department-approved locations and depths to determine the effects of the non-municipal land disposal site on groundwater;

(b) If the Department determines that monitoring wells are required at a non-municipal land disposal site, the permittee shall provide and maintain the wells at the locations specified by the Department and shall submit a copy of the geologic log and record of well construction to the Department within 30 days of completion of construction;

(c) Where the Department determines that self-monitoring is practicable, the Department may require that the permittee collect and analyze samples of surface water and/or groundwater, at intervals specified and in a manner approved by the Department, and submit the results in a format and within a time frame specified by the Department;

(d) The Department may require permittees who do self-monitoring to periodically split samples with the Department for the purpose of quality control.

(3) Corrective action. Notwithstanding OAR 340-093-0030(22), the Department may require action to remediate releases of constituents above the levels specified in OAR Chapter 340 Division 40. This authority is in addition to any other authority granted by law.

Stat. Auth.: ORS 459.045, ORS 459A.025 & ORS 468.020 
Stats. Implemented: ORS 459.015, ORS 459.205 – ORS 459.245 & ORS 459.248 
Hist.: DEQ 41, f. 4-5-72, ef. 4-15-72; DEQ 26-1981, f. & ef. 9-8-81; DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93; Renumbered from 340-061-0040; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 27-1998, f. & cert. ef. 11-13-98

340-095-0050

Closure and Post-Closure Care: Closure Permits

(1) Closure Permit:

(a) At least 5 years prior to anticipated final closure of a non-municipal land disposal site, the person holding the disposal site permit shall apply to renew the permit to cover the period of time remaining for site operations, closure of the site, and all or part of the time that active post-closure site maintenance is required by the Department. This last permit issued before final closure of the landfill is scheduled to occur shall be called a "closure permit;"

(b) The person who holds or last held the non-municipal land disposal site permit, or, if that person fails to comply, then the person owning or controlling a non-municipal land disposal site that is closed and no longer receiving solid waste after January 1, 1980, must continue or renew the disposal site permit after the site is closed for the duration of the period in which the Department continues to actively supervise the site, even though solid waste is no longer received at the site.

(2) Applications for closure permits must include but are not limited to:

(a) A Final Engineered Site Closure Plan prepared in accordance with OAR 340-095-0060. In lieu of requiring the Final Engineered Site Closure Plan as a part of the application for a closure permit, the Department may specify a date in the closure permit for submission of the Final Engineered Site Closure Plan;

(b) A Final Engineered Post-closure Plan prepared in accordance with OAR 340-095-0065. In lieu of requiring the Final Engineered Site Closure Plan as a part of the application for a closure permit, the Department may specify a date in the closure permit for submission of the Final Engineered Site Closure Plan;

(c) If the permittee does not own and control the property, a demonstration to the Department that the permittee has access to the non-municipal land disposal site property after closure to monitor and maintain the site and operate any environmental control facilities;

(d) If any person other than the permittee assumes any responsibility for any closure or post-closure activities, that responsibility shall be evidenced by a written contract between the permittee and each person assuming any responsibility.

(3) While a closure permit is in effect, the permittee shall submit a report to the Department within 90 days of the end of the permittee's fiscal year or as otherwise required in writing by the Department, which contains but is not limited to:

(a) An evaluation of the approved closure or post-closure plan as applicable discussing current status, unanticipated occurrences, revised closure date projections, necessary changes, etc.;

(b) A copy of the annual update of financial assurance as required by OAR 340-095-0090(6)(d). If the financial mechanism used is a trust fund, the permittee shall include an evaluation of the financial assurance plan documenting an accounting of amounts deposited and expenses drawn from the fund, as well as its current balance. This evaluation must also assess the adequacy of the financial assurance and justify any changes in the plan;

(c) Other information requested by the Department to determine compliance with the rules of the Department.

(4) The Department shall terminate closure permits for non-municipal land disposal sites not later than 30 years after the site is closed unless the Department finds there is a need to protect against a significant hazard or risk to public health or safety or the environment.

(5) Any time after a non-municipal land disposal site is closed, the permit holder may apply for a termination of the permit, a release from one or more of the permit requirements or termination of any applicable permit fee. Before the Department grants a termination or release under this section, the permittee must demonstrate and the Department must find that human health and the environment will be protected and there is no longer a need for:

(a) Active supervision of the site;

(b) Maintenance of the site; or

(c) Maintenance or operation of any system or facility on the site.

(6) The closure permit remains in effect and is a binding obligation of the permittee until the Department terminates the permit according to section (4) or (5) of this rule or upon issuance of a new closure permit for the site to another person following receipt of a complete and acceptable application.

Stat. Auth.: ORS 459.045, ORS 459.209, ORS 459.248, ORS 459.270, ORS 459.272 & ORS 468.020 
Stats. Implemented: ORS 459.268 
Hist.: DEQ 41, f. 4-5-72, ef. 4-15-72; DEQ 26-1981, f. & ef. 9-8-81; DEQ 2-1984, f. & ef. 1-16-84; DEQ 14-1984, f. & ef. 8-8-84; DEQ 5-1993, f. & cert. ef. 3-10-93; Renumbered from 340-061-0020 & 340-061-0028; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 2-1995, f. & cert. ef. 1-10-95

340-095-0060

Closure and Post-Closure Care: Closure Plans

To comply with the financial assurance requirements of OAR 340-095-0090(1)(a):

(1) Two types of written closure plans shall be prepared:

(a) The two types of closure plan are:

(A) A conceptual "worst-case" closure plan, for closing the site at its maximum capacity. The plan shall contain sufficient detail to allow a reasonable estimate of the cost of closing the non-municipal land disposal site as required by OAR 340-095-0090(1)(a); and subsequently

(B) A Final Engineered Site Closure Plan, as required by OAR 340-095-0050(2)(a), which shall replace the conceptual "worst-case" closure plan.

(b) Schedule for preparation of closure plans:

(A) The conceptual "worst-case" closure plan shall be prepared and placed in the facility operations office or other location approved by the Department, and the Director shall be notified of that action no later than April 9, 1995 or by the initial receipt of waste, whichever is later;

(B) The Final Engineered Site Closure Plan shall be prepared and submitted to the Department five years before the anticipated final closure date, or at a date specified in the permittee's closure permit pursuant to OAR 340-095-0050(2)(a).

(2) Requirements for closure plans. A closure plan shall specify the procedures necessary to completely close the non-municipal land disposal site at the end of its intended operating life:

(a) Requirements for the conceptual "worst-case" closure plan shall consist of at least the following:

(A) A description of the steps necessary to close all non-municipal land disposal units at any point during their active life;

(B) A description of the final cover system that is designed to minimize infiltration and erosion;

(C) An estimate of the largest area of the non-municipal land disposal unit ever requiring a final cover; and

(D) An estimate of the maximum inventory of wastes ever on-site over the active life of the facility.

(b) Requirements for the Final Engineered Site Closure Plan. In addition to the requirements for the conceptual "worst-case" closure plan, the Final Engineered Site Closure Plan shall consist of at least the following elements:

(A) Detailed plans and specifications consistent with the applicable requirements of OAR 340-093-0140 and 340-095-0030(2), unless an exemption is granted as provided in OAR 340-093-0070(5);

NOTE: If some of this information has been previously submitted, the permittee shall review and update it to reflect current conditions and any proposed changes in closure activities.

(B) A description of how and when the non-municipal land disposal site will be closed. If a landfill, the description shall, to the extent practicable, show how the landfill will be closed as filling progresses to minimize the area remaining to be closed at the time that the site stops receiving waste. A time schedule for completion of closure shall be included;

(C) Details of final closure. If a landfill, details of final cover including soil texture, depth and slope;

(D) Details of surface water drainage diversion; and

(E) Other information requested by the Department necessary to determine whether the non-municipal land disposal site will comply with all applicable rules of the Department.

(3) Department approval. The Final Engineered Site Closure Plan is subject to written approval by the Department. After approval by the Department, the permittee shall implement the Final Engineered Site Closure Plan within the approved time schedule.

(4) Amendment of Plan. The approved Final Engineered Site Closure Plan may be amended at any time as follows:

(a) The permittee must amend the plan whenever changes in operating plans or facility design, or changes in OAR Chapter 340 Divisions 93 through 97, or events which occur during the active life of the landfill significantly affect the plan. The permittee must also amend the plan whenever there is a change in the expected year of closure. The permittee must submit the necessary plan amendments to the Department for approval within 60 days after such changes or as otherwise required by the Department;

(b) The permittee may request to amend the plan to alter the closure requirements based on cause. The request must include evidence demonstrating to the satisfaction of the Department that:

(A) The nature of the non-municipal land disposal site makes the closure requirements unnecessary; or

(B) The requested alteration of closure requirements is necessary to prevent threat of adverse impact on public health, safety or the environment.

(c) The Department may amend a permit to require the permittee to modify the plan if it is necessary to prevent the threat of adverse impact on public health, safety or the environment. Also, the Department may alter the closure requirements based on cause.

Stat. Auth.: ORS 459.045, ORS 459A.025 & ORS 468.020 
Stats. Implemented: ORS 459.268 & ORS 459.270 
Hist.: DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93; Renumbered from 340-061-0033; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 2-1995, f. & cert. ef. 1-10-95; DEQ 27-1998, f. & cert. ef. 11-13-98

340-095-0065

Closure and Post-Closure Care: Post-Closure Plans

To comply with the financial assurance requirements of OAR 340-095-0090(1)(b):

(1) Two types of written post-closure plans shall be prepared:

(a) A "conceptual" post-closure plan; and subsequently

(b) A Final Engineered Post-closure Plan as required by OAR 340-095-0050(2)(b). When prepared, this shall include all requirements of and replace the "conceptual" post-closure plan.

(2) Schedule for preparation of post-closure plans:

(a) The "conceptual" post-closure plan shall be placed in the facility operations office or other location approved by the Department and the Director shall be notified of that action no later than April 9, 1995 or by the initial receipt of waste, whichever is later;

(b) The Final Engineered Post-closure Plan shall be prepared in conjunction with and submitted to the Department together with the Final Engineered Site Closure Plan required by OAR 340-095-0050(2)(b).

(3) Requirements for post-closure plans. Post-closure plans shall identify the post-closure activities which will be carried on to properly monitor and maintain the closed non-municipal land disposal site:

(a) Requirements for the "conceptual" post-closure plan shall consist of at least the following:

(A) Maintaining the integrity and effectiveness of any final cover;

(B) Maintaining and operating the leachate collection system, if required pursuant to OAR 340-095-0020(5);

(C) Monitoring the groundwater, if required pursuant to OAR 340-095-0040;

(D) Maintaining and operating the gas monitoring system if required pursuant to OAR 340-095-0020(9);

(E) Monitoring and providing security for the landfill site; and

(F) Description of the planned uses of the property during the post-closure care period.

(b) Requirements for the Final Engineered Post-closure Plan. In addition to the requirements for the "conceptual" post-closure plan, the Final Engineered Post-closure Plan shall consist of at least the following elements:

(A) Detailed plans and specifications consistent with the applicable requirements of OAR 340-093-0140 and 340-095-0030(2), unless an exemption is granted as provided in OAR 340-093-0070(5);

NOTE: If some of this information has been previously submitted, the permittee shall review and update it to reflect current conditions and any proposed changes in closure or post-closure activities.

(B) Details of how leachate discharges will be minimized and controlled and treated if necessary;

(C) Details of any landfill gas control facilities, their operation and frequency of monitoring;

(D) A schedule of monitoring the site after closure;

(E) A projected frequency of anticipated inspection and maintenance activities at the site after closure, including but not limited to repairing, recovering and regrading settlement areas, cleaning out surface water diversion ditches, and re-establishing vegetation; and

(F) Any other information requested by the Department necessary to determine whether the disposal site will comply with all applicable rules of the Department.

(c) Department approval. The Final Engineered Post-closure Plan is subject to written approval by the Department. After approval by the Department, the permittee shall implement the Final Engineered Post-closure Plan within the approved time schedule;

(d) Amendment. The approved Final Engineered Post-closure Plan may be amended at any time as follows:

(A) The permittee must amend the Plan whenever changes in operating plans or facility design, or changes in OAR Chapter 340 Divisions 93 through 97, or events which occur during the active life of the landfill or during the post-closure care period, significantly affect the Plan. The permittee must submit the necessary plan amendments to the Department for approval within 60 days after such changes or as otherwise required by the Department;

(B) The permittee may request to amend the Plan to alter the post-closure care requirements, or to extend or reduce the post-closure care period based on cause. The request must include evidence demonstrating to the satisfaction of the Department that:

(i) The nature of the landfill makes the post-closure care requirements unnecessary; or

(ii) The nature of the landfill supports reduction of the post-closure care period; or

(iii) The requested extension in the post-closure care period or alteration of post-closure care requirements is necessary to prevent threat of adverse impact on public health, safety or the environment.

(C) The Department may amend a permit to require the permittee to modify the Plan if it is necessary to prevent the threat of adverse impact on public health, safety or the environment. Also, the Department may extend or reduce the post-closure care period or alter the post-closure care requirements based on cause.

Stat. Auth.: ORS 459.045, ORS 459A.025 & ORS 468.020 
Stats. Implemented: ORS 459.268 & ORS 459.270 
Hist.: DEQ 2-1995, f. & cert. ef. 1-10-95; DEQ 27-1998, f. & cert. ef. 11-13-98

340-095-0070

Closure Requirements

Each permittee of a non-municipal land disposal site that closes after January 1, 1980 shall comply with this rule.

(1) When solid waste is no longer received at a non-municipal land disposal site, the person who holds or last held the permit issued under ORS 459.205 or, if the person who holds or last held the permit fails to comply with this section, the person owning or controlling the property on which the disposal site is located, shall close and maintain the site according to the requirements of ORS Chapter 459, all applicable rules adopted by the Commission under ORS 459.045 and all requirements imposed by the Department as a condition to renewing or issuing a non-municipal land disposal site permit.

(2) Unless otherwise approved or required in writing by the Department, no person shall permanently close or abandon a non-municipal land disposal site, except in the following manner:

(a) All areas containing solid waste not already closed in a manner approved by the Department shall be covered with at least three feet of compacted soil of a type approved by the Department graded to a minimum two percent and maximum 30 percent slope unless the Department authorizes a lesser depth or an alternative final cover design. In applying this standard, the Department will consider the potential for adverse impact from the disposal site on public health, safety or the environment, and the ability for the permittee to generate the funds necessary to comply with this standard before the disposal site closes. A permittee may request that the Department approve a lesser depth of cover material or an alternative final cover design based on the type of waste, climate, geological setting, degree of environmental impact;

(b) Final cover material shall be applied to each portion of a landfill within 60 days after said portion reaches approved maximum fill elevation, except in the event of inclement weather, in which case final cover shall be applied as soon as practicable;

(c) The finished surface of the closed areas shall consist of soils of a type or types consistent with the planned future use and approved by the Department. Unless otherwise approved by the Department, a vegetative cover of native grasses shall be promptly established over the finished surface of the closed site;

(d) All surface water must be diverted around the area of the non-municipal land disposal site used for waste disposal or in some other way prevented from contacting the waste material;

(e) All systems required by the Department to control or contain discharges to the environment must be completed and operational.

(3) Closure of non-municipal land disposal sites shall be in accordance with the detailed Final Engineered Site Closure Plan approved in writing by the Department pursuant to OAR 340-095-0060.

(4) Closure approval:

(a) When closure is completed, the permittee shall submit a written request to the Department for approval of the closure;

(b) Within 30 days of receipt of a written request for closure approval, the Department shall inspect the facility to verify that closure has been effected in accordance with the approved closure plan and the provisions of OAR Chapter 340, Divisions 93 and 95;

(c) If the Department determines that closure has been properly completed, the Department shall approve the closure in writing. Closure shall not be considered complete until such approval has been made. The date of approval notice shall be the date of commencement of the post-closure period.

Stat. Auth.: ORS 459.045, ORS 459.209, ORS 459.248, ORS 459.270, ORS 459.272 & ORS 468.020 
Stats. Implemented: ORS 459.268 
Hist.: DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93, Renumbered from 340-061-0042; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 2-1995, f. & cert. ef. 1-10-95

340-095-0080

Post-Closure Care Requirements

(1) Post-closure requirements:

(a) Upon completion or closure of any non-municipal land disposal site where waste remains on-site, a detailed description of the site including a plat should be filed with the appropriate county land recording authority by the permittee. The description should include the general types and location of wastes deposited, depth of waste and other information of probable interest to future land owners;

(b) During the post-closure care period, the permittee must, at a minimum:

(A) Maintain the approved final contours and drainage system of the site;

(B) Consistent with final use, ensure that a healthy vegetative cover is established and maintained over the site;

(C) Operate and maintain each leachate and gas collection, removal and treatment system present at the site;

(D) Operate and maintain each groundwater and surface water monitoring system present at the site;

(E) Comply with all conditions of the closure permit issued by the Department.

(2) Post-closure care period. Post-closure care must continue for 30 years after the date of completion of closure of any non-municipal land disposal site where waste remains on-site, unless otherwise approved or required by the Department according to OAR 340-095-0050(4) and (5).

Stat. Auth.: ORS 459.045, ORS 459.209, ORS 459.248, ORS 459.270, ORS 459.272 & ORS 468.020 
Stats. Implemented: ORS 459.268 
Hist.: DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93, Renumbered from 340-061-0043; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 2-1995, f. & cert. ef. 1-10-95

340-095-0090

Financial Assurance Criteria

(1) Financial Assurance Required. The owner or operator of a non-municipal land disposal site shall maintain a financial assurance plan with detailed written cost estimates of the amount of financial assurance that is necessary and shall provide evidence of financial assurance for the costs of:

(a) Closure of the non-municipal land disposal site;

(b) Post-closure maintenance of the non-municipal land disposal site; and

(c) Any corrective action required by the Department to be taken at the non-municipal land disposal site, pursuant to OAR 340-095-0040(3).

(2) Exemptions. The Department may exempt from the financial assurance requirements any non-municipal land disposal site including but not limited to construction and demolition waste sites, composting facilities and industrial waste sites:

(a) Exemption criteria. To be eligible for this exemption, the applicant shall demonstrate to the satisfaction of the Department that the site meets all of the following criteria and that the site is likely to continue to meet all of these criteria until the site is closed in a manner approved by the Department:

(A) The non-municipal land disposal site poses no significant threat of adverse impact on groundwater or surface water;

(B) The non-municipal land disposal site poses no significant threat of adverse impact on public health or safety;

(C) No system requiring active operation and maintenance is necessary for controlling or stopping discharges to the environment;

(D) The area of the non-municipal land disposal site that has been used for waste disposal and has not yet been properly closed in a manner acceptable to the Department is less than and remains less than two acres or complies with a closure schedule approved by the Department.

(b) In determining if the applicant has demonstrated that a non-municipal land disposal site meets the financial assurance exemption criteria, the Department will consider existing available information including, but not limited to, geology, soils, hydrology, waste type and volume, proximity to and uses of adjacent properties, history of site operation and construction, previous compliance inspection reports, existing monitoring data, the proposed method of closure and the information submitted by the applicant. The Department may request additional information if needed;

(c) An exemption from the financial assurance requirement granted by the Department will remain valid only so long as the non-municipal land disposal site continues to meet the exemption criteria in subsection (2)(a) of this rule. If the site fails to continue to meet the exemption criteria, the Department may modify the permit to require financial assurance.

(3) Schedule for provision of financial assurance:

(a) For costs associated with the conceptual "worst-case" closure plan and the conceptual post-closure plan prepared pursuant to OAR 340-095-0060(1)(a)(A) and OAR 340-095-0065(1)(a), respectively: Evidence of the required financial assurance for closure and post-closure maintenance of the non-municipal land disposal site shall be provided on the following schedule:

(A) For a new non-municipal land disposal site: no later than the time the solid waste permit is issued by the Department and prior to first receiving waste; or

(B) For a non-municipal land disposal site operating under a solid waste permit on November 4, 1993: by April 9, 1997.

(b) For costs associated with the Final Engineered Site Closure Plan and the Final Engineered Post-closure Plan prepared pursuant to OAR 340-095-0060(1)(a)(B) and OAR 340-095-0065(1)(b) respectively: Evidence of the required financial assurance for closure and post-closure maintenance of the land disposal site shall be provided at the same time those two Plans are due to the Department;

(c) Evidence of financial assurance for corrective action shall be provided before beginning corrective action;

(d) Continuous financial assurance shall be maintained for the facility until the permittee or other person owning or controlling the site is no longer required to demonstrate financial responsibility for closure, post-closure care or corrective action (if required).

(4) Financial assurance plans. The financial assurance plan is a vehicle for determining the amount of financial assurance necessary and demonstrating that financial assurance is being provided. A financial assurance plan shall include but not be limited to the following, as applicable:

(a) Cost Estimates. A detailed written estimate of the third-party costs in current dollars (as calculated using a discount rate equal to the current yield of a 5-year U.S. Treasury Note as published in the Federal Reserve's H.15 (519) Selected Interest Rates for the week in which the calculation is done), prepared by a Registered Professional Engineer, of:

(A) Closing the non-municipal land disposal site;

(B) Providing post-closure care, including installing, operating and maintaining any environmental control system required on the non-municipal land disposal site;

(C) Performing required corrective action activities; and

(D) Complying with any other requirement the Department may impose as a condition of issuing a closure permit, closing the site, maintaining a closed facility, or implementing corrective action.

(b) The source of the cost estimates;

(c) A detailed description of the form of the financial assurance and a copy of the financial assurance mechanism;

(d) A method and schedule for providing for or accumulating any required amount of funds which may be necessary to meet the financial assurance requirement;

(e) A proposal with provisions satisfactory to the Department for disposing of any excess moneys received or interest earned on moneys received for financial assurance, if applicable:

(A) To the extent practicable and to the extent allowed by any franchise agreement, the applicant's provisions for disposing of the excess moneys received or interest earned on moneys shall provide for:

(i) A reduction of the rates a person within the area served by the non-municipal land disposal site is charged for solid waste collection service as defined by ORS 459.005; or

(ii) Enhancing present or future solid waste disposal facilities within the area from which the excess moneys were received.

(B) If the non-municipal land disposal site is owned and operated by a private entity not regulated by a unit of local government, excess moneys and interest remaining in any financial assurance reserve shall be released to that business entity after post-closure care has been completed and the permittee is released from permit requirements by the Department.

(f) The financial assurance plan shall contain adequate accounting procedures to insure that the permittee does not collect or set aside funds in excess of the amount specified in the financial assurance plan or any updates thereto or use the funds for any purpose other than required by paragraph (8)(a) of this rule;

(g) The certification required by subsection (6)(c) of this rule; and

(h) The annual updates required by subsection (6)(d) of this rule.

(5) Amount of Financial Assurance Required. The amount of financial assurance required shall be established as follows:

(a) Closure. Detailed cost estimates for closure shall be based on the conceptual "worst-case" closure plan or the final Engineered Site Closure Plan, as applicable. Cost estimates for the Final Engineered Site Closure plan shall take into consideration at least the following:

(A) Amount and type of solid waste deposited in the site;

(B) Amount and type of buffer from adjacent land and from drinking water sources;

(C) Amount, type, availability and cost of required cover;

(D) Seeding, grading, erosion control and surface water diversion required;

(E) Planned future use of the disposal site property;

(F) The portion of the site property closed before final closure of the entire site; and

(G) Any other conditions imposed on the permit relating to closure of the site.

(b) Post-closure care. Detailed cost estimates for post-closure care shall be based on the conceptual post-closure plan or the Final Engineered Post-closure Plan, as applicable. Cost estimates for the Final Engineered Post-closure Plan shall also take into consideration at least the following:

(A) Type, duration of use, initial cost and maintenance cost of any active system necessary for controlling or stopping discharges; and

(B) Any other conditions imposed on the permit relating to post-closure care of the site.

(c) Corrective action. Estimated total costs of required corrective action activities for the entire corrective action period, as described in a corrective action report pursuant to requirements of OAR 340-095-0040(3);

(d) If a permittee is responsible for providing financial assurance for closure, post-closure care and/or corrective action activities at more than one non-municipal land disposal site, the amount of financial assurance required is equal to the sum of all cost estimates for each activity at each facility.

(6) How Financial Assurance Is to Be Provided and Updated:

(a) The permittee shall submit to the Department a copy of the first financial assurance mechanism prepared in association with a conceptual "worst-case" closure plan, a Final Engineered Site Closure Plan, a conceptual post-closure plan, a Final Engineered Post-closure Plan, and a corrective action report;

(b) The permittee shall also place a copy of the applicable financial assurance plan(s) in the facility operations office or another location approved by the Department on the schedule specified in Section (3) of this rule;

(c) The permittee shall certify to the Director at the time a financial assurance plan is placed in the facility operations office or other approved location that the financial assurance mechanism meets all state requirements. This date becomes the "annual review date" of the provision of financial assurance, unless a corporate guarantee is used, in which case the annual review date is 90 days after the end of the corporation's fiscal year;

(d) Annual update. The permittee shall annually review and update the financial assurance during the operating life and post-closure care period, or until the corrective action is completed, as applicable:

(A) The annual review shall include:

(i) An adjustment to the cost estimate(s) for inflation and in the discount rate as specified in subsection (4)(a) of this rule;

(ii) A review of the closure, post-closure and corrective action (if required) plans and facility conditions to assess whether any changes have occurred which would increase or decrease the estimated maximum costs of closure, post-closure care or corrective action since the previous review;

(iii) If a trust fund or other pay-in financial mechanism is being used, an accounting of amounts deposited and expenses drawn from the fund, as well as its current balance.

(B) The financial assurance mechanism(s) shall be increased or may be reduced to take into consideration any adjustments in cost estimates identified in the annual review;

(C) The annual update shall consist of a certification from the permittee submitted to the Department and placed in the facility operations office or other approved location. The certification shall state that the financial assurance plans(s) and financial assurance mechanism(s) have been reviewed, updated and found adequate, and that the updated documents have been placed at the facility operations office or other approved location. The annual update shall be no later than:

(i) The facility's annual review date; or

(ii) For a facility operating under a closure permit, by the date specified in OAR 340-095-0050(3).

(7) Department Review of Financial Assurance and Third-Party Certification:

(a) The Department may at any time select a permittee to submit financial assurance plan(s) and financial assurance mechanism(s) for Department review. Selection for review will not occur more frequently than once every five years, unless the Department has reasonable cause for more frequent selection. The Department may, however, review such plans and mechanisms in conjunction with a site inspection at any time;

(b) A permittee who wants to provide "alternative financial assurance" pursuant to OAR 340-095-0095(6)(g) shall submit its financial assurance plan and proposed financial assurance mechanism for Department review and approval on the schedule specified in section (3) of this rule. The submittal shall include certification from a qualified third party that the financial assurance mechanism meets all state requirements for financial assurance, and is reasonably designed to provide the required amount of financial assurance. The third-party certification shall be submitted in a format acceptable to the Department;

(c) The Department will review the financial assurance and the third-party certification, if applicable, for compliance with state laws.

(8) Accumulation of any financial assurance funds:

(a) The financial assurance mechanisms for closure, post-closure care and corrective action shall ensure the funds will be available in a timely fashion when needed. The permittee shall pay moneys into a trust fund in the amount and at the frequency specified in the financial assurance plan or obtain other financial assurance mechanisms as specified in the financial assurance plan, on the schedule specified in section (3) of this rule:

(A) Closure. The total amount of financial assurance required for closure shall be available in the form specified in the financial assurance plan or any updates thereto, whenever final closure of a non-municipal land disposal site unit is scheduled to occur in the conceptual "worst case" closure plan or in the Final Engineered Site Closure Plan;

(B) Post-closure care. The total amount of financial assurance required for post-closure care shall be available in the form specified in the financial assurance plan or any updates thereto, whenever post-closure care is scheduled to begin for a non-municipal land disposal site unit in the conceptual post-closure plan or in the Final Engineered Post-closure Plan;

(C) Corrective action. The total amount of financial assurance required for corrective action shall be available in the form specified in the financial assurance plan or any updates thereto on the schedule specified in the corrective action selected pursuant to OAR 340 Division 40.

(b) The permittee is subject to audit by the Department (or Secretary of State) and shall allow the Department access to all records during normal business hours for the purpose of determining compliance with this rule and OAR 340-095-0095;

(c) If the Department determines that the permittee did not set aside the required amount of funds for financial assurance in the form and at the frequency required by the applicable financial assurance plan, or if the Department determines that the financial assurance funds were used for any purpose other than as required in section (1) of this rule, the permittee shall, within 30 days after notification by the Department, deposit a sufficient amount of financial assurance in the form required by the applicable financial assurance plan along with an additional amount of financial assurance equal to the amount of interest that would have been earned, had the required amount of financial assurance been deposited on time or had it not been withdrawn for unauthorized use;

(d) If financial assurance is provided under OAR 340-095-0095(6)(a), (b) or (g), upon successful closure and release from permit requirements by the Department, any excess money in the financial assurance account must be used in a manner consistent with subsection (4)(e) of this rule.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 459.045, 459A.025 & 468.020
Stats. Implemented: ORS 459.248, 459.272 & 459.273
Hist.: DEQ 2-1984, f. & ef. 1-16-84; DEQ 5-1993, f. & cert. ef. 3-10-93, Renumbered from 340-061-0034; DEQ 10-1994, f. & cert. ef. 5-4-94; DEQ 2-1995, f. & cert. ef. 1-10-95; DEQ 8-1995(Temp), f. & cert. ef. 4-25-95; DEQ 23-1995(Temp), f. & cert. ef. 10-10-95; DEQ 27-1998, f. & cert. ef. 11-13-98; DEQ 7-2013, f. & cert. ef. 8-29-13

 

Financial Assurance Mechanisms

340-095-0095

Form of Financial Assurance

(1) The financial assurance mechanism shall restrict the use of the financial assurance so that the financial resources may be used only to guarantee that closure, post-closure or corrective action activities will be performed, or that the financial resources can be used only to finance closure, post-closure or corrective action activities.

(2) The financial assurance mechanism shall provide that the Department or a party approved by the Department is the beneficiary of the financial assurance.

(3) A permittee may use one financial assurance mechanism for closure, post-closure and corrective action activities, but the amount of funds assured for each activity must be specified.

(4) A permittee may demonstrate financial assurance for closure, post-closure and corrective action by establishing more than one mechanism per facility, except that mechanisms guaranteeing performance rather than payment may not be combined with other instruments.

(5) The financial assurance mechanism shall be worded as specified by the Department, unless a permittee uses an alternative financial assurance mechanism pursuant to subsection (6)(g) of this rule. The Department retains the authority to approve the wording of an alternative financial assurance mechanism.

(6) Allowable Financial Assurance Mechanisms. A permittee shall provide only the following forms of financial assurance for closure and post-closure activities:

(a) A trust fund established with an entity which has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency. The purpose of the trust fund is to receive and manage any funds that may be paid by the permittee and to disburse those funds only for closure, post-closure maintenance or corrective action activities which are authorized by the Department. The permittee shall notify the Department, in writing, before any expenditure of trust fund moneys is made, describing and justifying the activities for which the expenditure is to be made. If the Department does not respond to the trustee within 30 days after receiving such notification, the expenditure is deemed authorized and the trustee may make the requested reimbursements;

(b) A surety bond guaranteeing payment into a standby closure or post-closure trust fund issued by a surety company listed as acceptable in Circular 570 of the U.S. Department of the Treasury. The standby closure or post-closure trust fund must be established by the permittee. The purpose of the standby trust fund is to receive any funds that may be paid by the permittee or surety company. The penal sum of the bond must be in an amount at least equal to the current closure or post-closure care cost estimate, as applicable. The bond must guarantee that the permittee will either fund the standby trust fund in an amount equal to the penal sum of the bond before the site stops receiving waste or within 15 days after an order to begin closure is issued by the Department or by a court of competent jurisdiction; or that the permittee will provide alternate financial assurance acceptable to the Department within 90 days after receipt of a notice of cancellation of the bond from the surety. The surety shall become liable on the bond obligation if the permittee fails to perform as guaranteed by the bond. The surety may not cancel the bond until at least 120 days after the notice of cancellation has been received by both the permittee and the Department. If the permittee has not provided alternate financial assurance acceptable to the Department within 90 days of the cancellation notice, the surety must pay the amount of the bond into the standby trust account;

(c) A surety bond guaranteeing performance of closure, post-closure or corrective action activities issued by a surety company listed as acceptable in Circular 570 of the U.S. Department of the Treasury. A standby trust fund must also be established by the permittee. The purpose of the standby trust fund is to receive any funds that may be paid by the surety company. The bond must guarantee that the permittee will either perform final closure, post-closure maintenance or corrective action activities, as applicable, or provide alternate financial assurance acceptable to the Department within 90 days after receipt of a notice of cancellation of the bond from the surety. The surety shall become liable on the bond obligation if the permittee fails to perform as guaranteed by the bond. The surety may not cancel the bond until at least 120 days after the notice of cancellation has been received by both the permittee and the Department. If the permittee has not provided alternate financial assurance acceptable to the Department within 90 days of the cancellation notice, the surety must pay the amount of the bond into the standby trust account;

(d) An irrevocable letter of credit issued by an entity which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency. A standby trust fund must also be established by the permittee. The purpose of the standby trust fund is to receive any funds deposited by the issuing institution resulting from a draw on the letter of credit. The letter of credit must be irrevocable and issued for a period of at least one year and shall be automatically extended for at least one year on each successive expiration date unless the issuing institution notifies both the permittee and the Department at least 120 days before the current expiration date. If the permittee fails to perform closure and post-closure activities according to the closure plan and permit requirements, or to perform the selected remedy described in the corrective action report, or if the permittee fails to provide alternate financial assurance acceptable to the Department within 90 days after notification that the letter of credit will not be extended, the Department may draw on the letter of credit;

(e) A closure or post-closure insurance policy issued by an insurer who is licensed to transact the business of insurance or is eligible as an excess or surplus lines insurer in one or more states. The insurance policy must guarantee that funds will be available to complete final closure and post-closure maintenance of the site. The policy must also guarantee that the insurer will be responsible for paying out funds for reimbursement of closure and post-closure expenditures that are in accordance with the closure or post-closure plan or otherwise justified. The permittee shall notify the Department, in writing, before any expenditure of insurance policy moneys is made, describing and justifying the activities for which the expenditure is to be made. If the Department does not respond to the insurer within 30 days after receiving such notification, the expenditure is deemed authorized and the insurer may make the requested reimbursements. The policy must provide that the insurance is automatically renewable and that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. If there is a failure to pay the premium, the insurer may not terminate the policy until at least 120 days after the notice of cancellation has been received by both the permittee and the Department. Termination of the policy may not occur and the policy must remain in full force and effect if: the Department determines that the land disposal site has been abandoned; or the Department has commenced a proceeding to modify the permit to require immediate closure; or closure has been ordered by the Department, Commission or a court of competent jurisdiction; or the permittee is named as debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or the premium due is paid. The permittee is required to maintain the policy in full force and effect until the Department consents to termination of the policy when alternative financial assurance is provided or when the permit is terminated;

(f) Corporate guarantee. A private corporation meeting the financial test may provide a corporate guarantee that funds are available for closure, post-closure or corrective action activities, and that those activities will be completed according to the closure or post-closure plan, permit requirements or selected remedy described in the corrective action report, as applicable. A qualifying private corporation may guarantee its own obligations, the obligations of a corporate parent, sibling or subsidiary, and the obligations of a firm with which it has a substantial business relationship. A corporation guaranteeing the obligations of a firm with which it has a substantial business relationship must certify that it possesses such relationship and that it is issuing the guarantee as an act incident to that relationship, and must specify any compensation received for its issuance of such guarantee. To qualify, a private corporation must meet the criteria of either paragraph (A) or (B) of this subsection:

(A) Financial Test. To pass the financial test, the permittee must have:

(i) Two of the following three ratios: A ratio of total liabilities to tangible net worth less than 1.5; a ratio of the [(sum of net income plus depreciation, depletion, and amortization) minus $10 million] to total liabilities greater than 0.1; or a ratio of current assets to current liabilities greater than 1.5;

(ii) Net working capital equal to at least four times and tangible net worth equal to at least six times the sum of the current cost estimates covered by the test;

(iii) Tangible net worth of at least $10 million exclusive of the costs being guaranteed; and

(iv) Assets in the United States amounting to at least the sum of the current closure, post-closure and corrective action cost estimates covered by the test, plus any other environmental obligations guaranteed by permittee.

(B) Alternative Financial Test. To pass the alternative financial test, the permittee must have:

(i) Tangible net worth of at least $10 million exclusive of the costs being guaranteed; and

(ii) Two of the following three ratios:

(I) Times Interest Earned ([earnings before interest and taxes] divided by interest) of 2.0 or higher;

(II) Beaver's Ratio of 0.2 or higher ([internally generated cash] divided by [total liabilities]). Internally generated cash is obtained from taxable income before net operating loss, plus credits for fuel tax and investment in regulated investment companies, plus depreciation plus amortization plus depletion, plus any income on the books not required to be reported for tax purposes if it is likely to be recurring, minus income tax expenses. Total liabilities includes all long- and short-term debt; or

(III) Altman's Z-Score of 2.9 or higher.

(C) The permittee shall demonstrate that it passes the financial test at the time the financial assurance plan is filed and reconfirm that annually 90 days after the end of the corporation's fiscal year by submitting the following items to the Department:

(i) A letter signed by the permittee's chief financial officer that provides the information necessary to document that the permittee passes the financial test; that guarantees that the funds are available to finance closure, post-closure or corrective action activities according to the closure or post-closure plan, permit requirements or selected remedy described in the corrective action report, as applicable; that guarantees that the closure, post-closure or corrective action activities will be completed according to the closure or post-closure plan, permit requirements or selected remedy described in the corrective action report, as applicable; that guarantees that a substitute financial mechanism acceptable to the Department will be fully funded within 30 days after either service of a Final Order assessing a civil penalty from the Department for failure to adequately perform closure or post-closure activities according to the closure or post-closure plan and permit, or the selected remedy described in the corrective action report, as applicable, or service of a written notice from the Department that the permittee no longer meets the criteria of the financial test; that guarantees that the permittee's chief financial officer will notify the Department within 15 days any time that the permittee no longer meets the criteria of the financial test or is named as debtor is a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; and that acknowledges that the corporate guarantee is a binding obligation on the corporation and that the chief financial officer has the authority to bind the corporation to the guarantee;

(ii) A copy of the independent certified public accountant's (CPA) report on examination of the permittee's financial statements for the latest completed fiscal year;

(iii) An agreed-upon procedures letter prepared in accordance with standards established by the American Institute of Certified Public Accountants from the permittee's independent CPA in which the CPA either specifies that the figures used in determining that the corporation meets the requirements of the corporate financial test are the same as the figures in the corporation's independently audited year end financial statements for the latest fiscal year or explains any deviation therein to the satisfaction of the Department;

(iv) A list of any facilities in Oregon or elsewhere for which the permittee is using a similar financial means test to demonstrate financial assurance.

(D) The Department may, based on a reasonable belief that the permittee no longer meets the criteria of the financial test, require reports of the financial condition at any time from the permittee in addition to the annual report. If the Department finds, on the basis of such reports or other information, that the permittee no longer meets the criteria of the financial test, the permittee shall fully fund a substitute financial assurance mechanism acceptable to the Department within 30 days after notification by the Department.

(g) Alternative Financial Assurance. Alternative forms of financial assurance may be proposed by the permittee, subject to the review and approval of the Director. The applicant must be able to prove to the satisfaction of the Department that the level of security is equivalent to subsections (a) through (f) of this section and that the criteria of OAR 340-095-0090(4)(e) and sections (1) through (4) of this rule are met. Submittal of an alternative financial assurance mechanism to the Department for review and approval shall include third-party certification as specified in OAR 340-095-0090(7).

(7) Allowable Financial Assurance Mechanisms for Corrective Action. A permittee shall provide one of the following forms of financial assurance for corrective action: a trust fund, a surety bond guaranteeing performance of corrective action, an irrevocable letter of credit, a corporate guarantee, or alternative forms of financial assurance, pursuant to subsections (6)(a), (c), (d), (f) or (g) of this rule, respectively. Unless specifically required by a mutual agreement and order pursuant to ORS 465.325, the surcharge provisions of ORS 459.311 shall not be used to meet the financial assurance requirements of this rule for financial assurance for corrective action.

NOTE: Formats containing the standard wording for financial assurance mechanisms as required by OAR 340-095-0095(5) may be obtained from the Department.

[ED. NOTE: Appendices referenced are available from the agency.]

Stat. Auth.: ORS 459.045 & 468.020
Stats. Implemented: ORS 459.248, 459.272 & 459.273
Hist.: DEQ 2-1995, f. & cert. ef. 1-10-95, Renumbered from 340-095-0090(5); DEQ 27-1998, f. & cert. ef. 11-13-98; DEQ 7-2013, f. & cert. ef. 8-29-1

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