§ 27-0917. Financial requirements for hazardous waste facilities.\n 1. Within eighteen months after the effective date of this section,\nthe commissioner shall promulgate regulations for hazardous waste\nfacilities identifying financial requirements to be included as\nconditions in hazardous waste facility permits for the remediation of\nfailures during operation and after facility closure, for facility\nclosure, and for pre-closure and post-closure facility monitoring and\nmaintenance. In promulgating regulations pursuant to this subdivision,\nthe department shall identify those regulations which vary from\napplicable federal rules and regulations. Such regulations shall:\n (a) Reflect due consideration of relevant federal requirements and\nexcept where necessary to serve the public interest or where\ninconsistent with the purposes of this section, conform to regulations\npromulgated under the Resource Conservation and Recovery Act of 1976 and\nthe Comprehensive Environmental Response Compensation and Liability Act\nof 1980 but shall in no case be less stringent than such federal\nrequirements and regulations.\n (b) Reflect due consideration of the sizes and locations of affected\nfacilities, the natures and volumes of hazardous waste involved, the\ntypes of facilities (treatment, storage or disposal) and the degrees and\ndurations of risk to human health or the environment.\n (c) Provide for the establishment, administration, terms and\nconditions of the following methods or instruments to be used as\nalternatives or in combinations, in order to achieve non-duplicative\ncoverage of the financial assurance requirements mandated by this\nsection:\n (i) Trust funds.\n (ii) Surety or performance bonds.\n (iii) Letters of credit.\n (iv) Liability insurance or annuities.\n (v) Guarantees provided by corporate or other legal or financial\naffiliates of the facility owner or operator.\n (d) Establish:\n (i) Exemptions for identified classes of facilities engaged in\ntreatment or storage of hazardous waste for which financial assurance\nrequirements for closure and post-closure monitoring and maintenance are\nunnecessary or inappropriate.\n (ii) Financial criteria for the purpose of determining the financial\ncondition of permit applicants and permit holders. Such financial\ncriteria shall be established for the purpose of determining the\nrelative financial viability of permit holders and applicants. The\ndepartment shall establish standards of minimum financial viability\nbased on the criteria. Any permit holder or applicant meeting the\nminimum financial viability standard may select at its own discretion\nwhich of the methods or instruments described in paragraph (c) of this\nsubdivision will be used to meet the requirements of subdivision five of\nthis section. With respect to permit holders or applicants which do not\nmeet the minimum financial viability standards, the commissioner may in\nhis discretion determine which method or instrument or combination\nthereof shall be used to meet the requirements of subdivision five of\nthis section. Any decision by the commissioner with respect to\ndetermining which methods or instruments are to be used shall be\naccompanied by a finding regarding the public interest and shall set\nforth the reasons therefor.\n (iii) Requirements for the initial and periodic submission by permit\nholders and applicants to the department of up to date financial data\nbased on the test criteria established pursuant to subparagraph (ii) of\nthis paragraph.\n (iv) The duration of such financial requirements.\n (v) The method for phasing-in financial requirements for existing\nfacilities.\n 2. The commissioner shall undertake an analysis of the use of a\nfinancial test as an alternative to the requirements for use of the\nfinancial assurances methods or instruments provided for in paragraph\n(c) of subdivision one of this section. In his analysis the commissioner\nshall consider relevant feder
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