Section 150. Trust fund

A. An owner or operator may satisfy the requirements of this article by establishing a trust fund that conforms to the requirements of this section and by submitting an originally signed triplicate of the trust agreement to the director. The owner or operator shall also place a copy of the trust agreement into the facility's operating record. The trustee for the trust fund shall be a bank or financial institution that has the authority to act as a trustee and whose trust operations are regulated and examined by the Commonwealth of Virginia.

B. Payments into the trust fund shall be made annually by the owner or operator over the active or the remaining life of the solid waste management unit, whichever is shorter. In the case of a trust fund for closure or post-closure care, this is known as the "pay-in period." In the case of a trust fund for corrective action for known releases, the "corrective action pay-in period" is one-half of the estimated length of the corrective action program.

C. If a trust fund is used to demonstrate financial assurance for closure and post-closure care:

1. For a new facility, the first payment shall be made at least 60 days before the initial receipt of waste for treatment or disposal. A receipt from the trustee for this payment shall be submitted by the owner or operator to the director before this initial receipt of waste. For an existing facility, permitted or unpermitted, the first payment is due on the effective date of the trust agreement.

2. The first payment shall be at least equal to the current closure cost and, if applicable, post-closure care estimate divided by the number of years in the pay-in period. The amount of the first payment shall be determined by the formula:

First payment is the	Cost Estimate	or	CE
	Total Years		TY

where CE is the current closure and post-closure cost estimate and TY is the number of years in the pay-in period. Subsequent payments shall be made no later than 30 days after each anniversary date of the first payment. The amount of each subsequent payment shall be determined by this formula:

Next payment is the	Cost Estimate – Current Value of the trust fund	or	CE - CV
	Remaining Years		RY

where CE is the current closure and post-closure care cost estimate (updated for inflation), CV is the current value of the trust fund, and RY is the number of years remaining in the pay-in period.

D. For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund shall be at least equal to one-half of the current cost estimate for corrective action divided by the number of years in the corrective action pay-in period as defined in subsection B of this section. The amount of subsequent payments shall be determined by the following formula:

Next payment is	The most recent estimate of the trust fund balance – the Current Value of the trust fund	or	RB - CV
	Corrective Action Remaining Years		CARY

where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and CARY is the number of years remaining on the pay-in period. The initial payment into the trust fund shall be made no later than 120 days after the corrective action remedy has been selected.

E. The owner or operator must submit to the director prior to the anniversary date:

1. The calculation for determining the appropriate payment amount into the trust;

2. A statement from the trustee documenting the current fund value used to calculate the appropriate trust payment (this is the CV value); and

3. A statement from the trustee indicating the amount of the deposit into the trust fund.

F. If the owner or operator establishes a trust fund after having used one or more alternate mechanisms specified in this section, the initial payment into the trust fund shall be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of this section, as applicable.

G. The owner or operator may accelerate payments into the trust fund or he may deposit the full amount of the cost estimate at the time the fund is established. However, the value of the fund shall be maintained at no less than the value would have been if annual payments were made as specified in subsections B through F of this section, as applicable. Owners and operators of solid waste management units other than landfills shall deposit the full amount of the cost estimate at the time the fund is established.

H. Whenever the cost estimate changes after the pay-in period is completed, the owner or operator shall compare the new estimate with the trustee's most recent annual valuation of the trust fund. If the value of the fund is less than the amount of the new cost estimate, the owner or operator shall, within 60 days of the change in the cost estimate, deposit a sufficient amount into the fund so that its value after payment at least equals the amount of the new estimate, or obtain other financial assurance as specified in this article to cover the difference. If the value of the trust fund is greater than the total amount of the cost estimate, the owner or operator may submit a written request to the director for release of the amount that is in excess of the cost estimate.

I. If the owner or operator substitutes other financial assurance as specified in this article for all or part of the trust fund, he may submit a written request to the director for release of the amount in excess of the current cost estimate covered by the trust fund.

J. Within 60 days after receiving a request from the owner or operator for release of funds specified in subsections H and I of this section, the director will instruct the trustee to release to the owner or operator such funds as the director deems appropriate, if any, in writing.

K. After beginning closure or during the period of post-closure care or corrective action, an owner or operator or any other person authorized to conduct closure, post-closure care, or corrective action may request reimbursement for closure, post-closure, or corrective action expenditures by submitting itemized bills to the director. Requests for reimbursement will be granted by the director only if sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care, or corrective action. Reimbursements will not be made from the trust fund until the pay-in period is complete. Within 60 days after receiving bills for closure, post-closure care, or corrective action activities, the director shall instruct the trustee to make reimbursements in those amounts as the director determines are in accordance with the closure or post-closure plan or are otherwise justified.

L. The director shall agree to terminate the trust when:

1. The owner or operator substitutes alternate financial assurance as specified in this article; or

2. The director notifies the owner or operator that he is no longer required by this article to maintain financial assurance for the closure, post-closure care or corrective action.

M. The wording of the trust agreement shall be identical to the wording specified in 9VAC20-70-290 A and the trust agreement shall be accompanied by a formal certification of acknowledgment. Schedule A of the trust agreement, as described in 9VAC20-70-290 A, shall be updated within 60 days after a change in the amount of the current cost estimate covered by the agreement.

Historical Notes

Derived from Volume 14, Issue 06, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 03, eff. November 21, 2001.

Statutory Authority

§§ 10.1-1402 and 10.1-1410 of the Code of Virginia.