Section 287.326. Phased deposit of collateral

(a) If the Department determines, based upon the approved facility operation plan, that the facility will be accepting residual waste for at least 10 years from the date of permit issuance or the commencement of acceptance of residual waste, whichever is later, prior to closure of the facility, a person or municipality may post a collateral bond according to the following requirements.

(1) The operator shall submit a collateral bond to the Department, accompanied by sufficient collateral as required in this subchapter, and a schedule for deposit of the remaining required collateral.

(2) The operator shall deposit with the Department $10,000 or 25% of the total amount of bond determined in this subchapter, whichever is greater, in approved collateral prior to issuance of the permit.

(3) The operator shall submit a schedule agreeing to deposit 10% of the remaining amount of bond in approved collateral in each of the next 10 years, or in proportions so that final payment is made by the date required by the Department. The entire bond amount shall be submitted by the operator no later than the actual or expected closure of the facility. Annual payments shall become due on the anniversary date of the issuance of the permit, unless otherwise established by the Department. Payments shall be accompanied by appropriate bond documents required by the Department.

(4) Failure or refusal to make annual payments on or before the due date shall be grounds for forfeiture of the bond.

(5) The Department may require additional bonding in an amount determined under § 287.331 (relating to bond amount determination) if the Department determines that a higher bond amount is necessary. The increase in the total bond amount required shall proportionately increase the remaining annual payments. The operator shall submit a new schedule, and the increased portions of payments already made, within 30 days of notice by the Department of an increase in the total bond amount.

(b) The operator shall deposit the full amount of bond required for the facility within 30 days of receipt of a written demand by the Department to accelerate deposit of the bond. The Department may make the demand when one of the following occurs:

(1) The operator has failed to make a deposit of bond amount when required according to the schedule for the deposits.

(2) The operator has violated the requirements of the act, the environmental protection acts, this title, the terms or conditions of the permit or orders of the Department.

(3) The actual or expected closure of the facility will occur prior to the expiration of the 10-year period determined under this section.

(c) The operator shall survey the facility annually to determine the remaining permitted capacity, and shall notify the Department if the actual or expected closure of the facility will occur prior to the expiration of the 10-year period under this section, or if the facility will reach 50% capacity within 5 years after commencement of acceptance of residual waste at the facility.

(d) The Department will not accept phased deposit of collateral as bond for a facility if one of the following occurs:

(1) The operator has failed to pay to the Department, when due, permit fees, fines, penalties or other payments, or has failed to deposit bonds amounts with the Department when due.

(2) The operator has a pattern or history of violations of the act, the environmental protection acts, this title, the terms and conditions of the permit or orders of the Department which, even if later corrected, demonstrates a lack of ability or intention to comply with these requirements.

(e) Interest earned by collateral on deposit shall be accumulated and become part of the bond amount until the operator completes deposit of the requisite bond amount in accordance with the schedule of deposit. After the operator completes deposit of the requisite bond amount in accordance with the schedule of deposit, the operator may request the Department for a return of accumulated interest. The Department may return the accumulated interest if the return of the accumulated interest does not reduce the amount of collateral below the required bond amount.

Notation

Cross References

This section cited in 25 Pa. Code § 287.313 (relating to form, terms and conditions of the bond); and 25 Pa. Code § 287.333 (relating to failure to maintain adequate bond).