Article 4 - Financial Ability

California Public Resources Code — §§ 43600-43610.1

Sections (11)

Amended by Stats. 1996, Ch. 1041, Sec. 14. Effective January 1, 1997.

(a)Except as otherwise provided in subdivision (b), any person owning or operating a solid waste landfill, as defined in Section 40195.1, shall, with the closure plan and postclosure maintenance plan submitted pursuant to subdivision (b) of Section 43501, submit to the board evidence of financial ability to provide for the cost of closure and postclosure maintenance, in an amount that is equal to the estimated cost of closure and 15 years of postclosure maintenance, contained in the closure plan and the postclosure maintenance plan submitted.

(b)On and after the effective date of the federal regulations set forth in Subpart G (commencing with Section 258.70) of Part 258 of Title 40 of the Code of Federal Regulations, any person owning or operating a solid waste landfill, shall, with the closure plan and postclosure maintenance plan submitted pursuant to subdivision (b) of Section 43501, submit to the board evidence of financial ability to provide for closure and postclosure maintenance, in an amount that is equal to the estimated cost of closure and 30 years of postclosure maintenance, contained in the closure plan and the postclosure maintenance plan submitted.

§ 43601

Repealed (in Sec. 3) and added by Stats. 2012, Ch. 713, Sec. 4. (AB 480) Effective January 1, 2013. Section operative January 1, 2018, by its own provisions.

(a)The evidence of financial ability shall be sufficient to meet the closure and postclosure maintenance costs when needed.

(b)The owner or operator of a solid waste landfill shall provide evidence of financial ability through the use of any of the mechanisms set forth in Part 258 (commencing with Section 258.1) of Title 40 of the Code of Federal Regulations or through the use of any other mechanisms approved by the department. However, the department may adopt regulations that reasonably condition the use of one or more of those mechanisms to ensure adequate protection of public health and safety and the environment, but shall not exclude the use of any

mechanism permitted under federal law. In addition, the evidence of financial ability submitted pursuant to Section 43600 shall provide that funds shall be available to the regional water boards upon the issuance of any order under Chapter 5 (commencing with Section 13300) of Division 7 of the Water Code to implement closure and postclosure activities.

(c)The state water board or the appropriate regional water board shall have access to the financial assurance funds for closure and postclosure activities, and to financial assurance funds for corrective action, as necessary, to address water quality problems, if the owner or operator of the solid waste landfill has failed to implement the required closure and postclosure activities or corrective action activities.

(d)The

owner or operator may request disbursement for expenditures to conduct closure, postclosure maintenance, or corrective actions from the financial assurance mechanism established for that activity. Requests for disbursement shall be granted by the department only if sufficient funds are remaining in the financial assurance mechanism to cover the remaining approved total costs of closure, postclosure maintenance, or corrective actions, as appropriate.

(e)If the evidence of financial ability for closure, postclosure, or corrective action is demonstrated by use of insurance, the department may approve the insurance mechanism if it is in compliance with either paragraph (1) or (2) as follows:

(1)The issuer of the insurance policy is either:

(A)Licensed by the Department of Insurance to transact the business of insurance in the State of California as an admitted carrier.

(B)Eligible to provide insurance as an excess and surplus lines insurer in California through a surplus lines broker currently licensed under the regulations of the Department of Insurance and upon the terms and conditions prescribed by the Department of Insurance.

(2)If the insurance carrier is established by a solid waste facility operator to meet the financial assurance obligations of that operator, insurance may be approved by the department that meets all of the following requirements:

(A)The insurance mechanism is in full compliance with the requirements for

insurance that are specified in subdivision (d) of Section 258.74 of Title 40 of the Code of Federal Regulations.

(B)The insurance carrier is an insurer domiciled in the United States and licensed in its state of domicile to write that insurance.

(C)The insurance carrier only provides financial assurance to the operator that has established the insurance carrier as a form of self-insurance and does not engage in the business of marketing, brokering, or providing insurance coverage to other parties.

(D)The insurance carrier shall maintain a rating of A- or better by A.M. Best, or other equivalent rating by any other agency acceptable to the department.

(E)If

requested by the department, an independent financial audit report evaluating the assets and liabilities of the insurance carrier and confirming compliance with the statutory and regulatory requirements of the state of domicile and an independent actuarial opinion on the independence and financial soundness of the insurance carrier by an actuary in good standing with the Casualty Actuarial Society or the American Academy of Actuaries regarding the adequacy of the loss reserves maintained by the insurance carrier shall be submitted to the department upon application and annually thereafter.

(f)A solid waste facility operator using or proposing to use an insurance company to demonstrate financial assurance may be required by the department to pay a fee for the actual and necessary

cost of reviewing information submitted by the operator pursuant to paragraph (2) of subdivision (e) up to an amount not to exceed ten thousand dollars ($10,000), unless a higher amount is mutually agreed to by the operator and the department.

(g)The funds collected pursuant to subdivision (f) shall be deposited in the Integrated Waste Management Account and shall be available, upon appropriation by the Legislature, for expenditure by the department to fund the review specified in subdivision (f).

(h)This section shall become operative on January 1, 2018.

§ 43601.2

Added by Stats. 2012, Ch. 713, Sec. 5. (AB 480) Effective January 1, 2013.

(a)On or before January 1, 2017, the Department of Resources Recycling and Recovery shall submit to the Legislature a report on the use of the mechanisms pursuant to paragraph (2) of subdivision (e) of Section 43601 for demonstrating financial ability to provide for the cost of closure and postclosure maintenance. The report shall,

at a minimum, address all of the following:

(1)A summary of any ratings reports, audit finding, or other information regarding an owner or operator using financial mechanisms pursuant to paragraph (2) of subdivision (e) of Section 43601 to provide financial assurance.

(2)Whether

financial mechanisms pursuant to paragraph (2) of subdivision (e) of Section 43601 provide adequate financial assurance to provide for the costs of solid waste landfill closure and postclosure maintenance.

(3)The level of assurance provided by financial mechanisms pursuant to paragraph (2) of subdivision (e) of Section 43601 relative to other mechanisms permitted pursuant to Section 43601.

(4)Any financial liability the state may assume if the mechanisms permitted pursuant to Section 43601 fail.

(5)Any recommendations for ensuring solid waste landfill closure and postclosure maintenance costs are properly assured to protect the state from long-term postclosure and corrective action costs in the event that a landfill owner or operator fails to meet its legal obligations.

(b)(1) The department may consult with the

Department of Insurance for the purposes of completing the report required by subdivision (a).

(2)By March 1, 2013, the department shall make public an estimate of the costs of the study necessary to complete the report required by subdivision (a). The costs of the study are not subject to the limitations set forth in subdivision (g) of Section 43601.

(3)This subdivision does not preclude the department from recovering costs in excess of this estimate from an owner or operator of a solid waste landfill that is utilizing insurance under paragraph (2) of subdivision (e) of Section 43601.

(4)An owner or operator of a solid waste landfill shall not use insurance under paragraph (2) of subdivision (e) of Section 43601 as evidence of sufficient financial ability as required by subdivision (a) of Section 43601, unless

the department has received private funds equal to the department’s estimated costs.

(c)If the department enters into a contract with an entity to conduct the study necessary to complete the report required by subdivision (a), no person or entity that has provided funds for the study shall have input as to the terms of the contract or the awarded contractor. In awarding the contract, the department shall consider and disclose any past or current relationship that the contractor has had with an owner or operator of a solid waste landfill that may use the insurance mechanism allowed under paragraph (2) of subdivision (e) of Section 43601.

§ 43601.5

Added by Stats. 1993, Ch. 360, Sec. 1. Effective January 1, 1994.

(a)On or before March 1, 1994, the board shall review and revise regulations affecting solid waste landfill closure and postclosure financial assurances adopted in accordance with this article to make the regulations consistent with the requirements established pursuant to Subpart G (commencing with Section 258.1) of Part 258 of Subchapter I of Chapter 1 of Title 40 of the Code of Federal Regulations, as amended on October 9, 1991.

(b)In reviewing and revising regulations pursuant to subdivision (a), the board shall, consistent with this division, and with federal law and regulations, endeavor to minimize the costs of compliance with those regulations by the owners and operators of public solid waste landfills and to provide flexible mechanisms for those owners and operators to comply with closure and postclosure financial assurance requirements, in order to ensure that adequate funding will be available for programs and projects that are necessary to comply with the diversion requirements of Section 41780.

§ 43602

Amended by Stats. 1996, Ch. 1041, Sec. 15. Effective January 1, 1997.

(a)Except as provided in subdivision (b), evidence of financial ability required of an owner or operator of a solid waste landfill, as defined in Section 40195.1, shall be adjusted to equal the estimated costs of closure and 15 years of postclosure maintenance in the approved plans. Revisions in the plans prior to closure shall be accompanied by corresponding revisions in cost estimates and financial assurances.

(b)On and after the effective date of the federal regulations set forth in Subpart G (commencing with Section 258.70) of Part 258 of Title 40 of the Code of Federal Regulations, the evidence of financial ability required of an owner or operator of a solid waste landfill shall be adjusted to equal the estimated costs of closure and 30 years of postclosure maintenance in the approved plans. Revisions in the plans prior to closure shall be accompanied by corresponding revisions in cost estimates and financial assurances.

§ 43603

Amended by Stats. 1992, Ch. 1062, Sec. 3. Effective January 1, 1993.

The board shall not require an owner or operator of a disposal site to revise or amend a closure plan submitted pursuant to this section or former Section 66796.22 of the Government Code after closure of the landfill in order to reflect subsequent changes in any standards and regulations adopted by the board.

§ 43604

Repealed and added by Stats. 1993, Ch. 1169, Sec. 16. Effective October 11, 1993.

(a)During the closure and postclosure maintenance period, a solid waste landfill owner or operator shall maintain evidence of financial ability sufficient to pay postclosure maintenance costs, except that the owner or operator may request reimbursement for costs of postclosure maintenance as they are incurred if the remaining amount of funds is at least equal to the remaining postclosure maintenance cost.

(b)Notwithstanding the effective date of this section, owners and operators shall be required to comply with this section on the effective date of those regulations set forth in Part 258 (commencing with Section 258.1) of Title 40 of the Code of Federal Regulations.

§ 43605

Amended by Stats. 1992, Ch. 1062, Sec. 5. Effective January 1, 1993.

Nothing in this division affects the authority of the State Water Resources Control Board to impose closure and postclosure maintenance requirements on disposal sites.

§ 43606

Amended by Stats. 1992, Ch. 1062, Sec. 6. Effective January 1, 1993.

(a)Except for financial arrangements approved by the board pursuant to this article, no indemnification, hold harmless, or similar agreement or conveyance is effective to transfer from the owner or operator of a disposal site to any other person any obligations imposed on the owner or operator under this article.

(b)Notwithstanding subdivision (a), nothing in this section prohibits any agreement between the owner and the operator regarding their respective obligations for closure and postclosure maintenance of a disposal site, and nothing in this section prohibits a cause of action that an owner or operator has or would have against the other party by reason of that agreement.

§ 43610

Amended by Stats. 1996, Ch. 1041, Sec. 16. Effective January 1, 1997.

(a)Notwithstanding Article 3 (commencing with Section 43500) or this article, a small city which operates a solid waste landfill, as defined in Section 40195.1, in Kings County, that is operational and, as of January 1, 1991, has been granted all required permits, is not required to submit a postclosure maintenance plan or to provide a fund for postclosure maintenance pursuant to Article 3 (commencing with Section 43500) or this article, if all of the following conditions are met:

(1)The city has a population of less than 20,000 persons.

(2)The solid waste landfill receives less than 20,000 tons of solid waste per year.

(3)The water table of the highest aquifer under the solid waste landfill is 250 or more feet below the base of the solid waste landfill and the water in the highest aquifer is not potable.

(4)The solid waste landfill receives less than an average of 12 inches of rainfall per year.

(5)The solid waste landfill is closed in compliance with all state closure testing requirements at the time of closure.

(b)The exemption in subdivision (a) from the requirement to submit a postclosure maintenance plan shall become inoperative on the effective date of the federal regulations set forth in Subpart F (commencing with Section 258.60) of Part 258 of Title 40 of the Code of Federal Regulations, and the exemption in subdivision (a) from the requirement to provide a fund for postclosure maintenance shall become inoperative on the effective date of the federal regulations set forth in Subpart G (commencing with Section 258.70) of Part 258 of Title 40 of the Code of Federal Regulations.

§ 43610.1

Added by Stats. 1993, Ch. 656, Sec. 25. Effective October 1, 1993.

A disposal site owner or operator who meets the requirements of this article and its implementing regulations shall be deemed to have satisfactorily complied with all state requirements for financial ability to provide for closure and postclosure maintenance costs.