DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Solid and Hazardous Waste Commission/Hazardous Materials and Waste Management Division
6 CCR 1007-2
PART 1 - REGULATIONS PERTAINING TO SOLID WASTE SITES AND FACILITIES

Amendment of the Solid Waste Financial Assurance Regulations

(Adopted by the Solid and Hazardous Waste Commission on May 15, 2018)

1) Amend Section 1 of the Table of Contents of the Solid Waste Regulations by deleting and reserving Section 1.8 to read as follows:  

PART 1 - REGULATIONS PERTAINING TO SOLID WASTE SITES AND FACILITIES

TABLE OF CONTENTS

PART A

GENERAL REQUIREMENTS AND INFORMATION CONCERNING
ALL SOLID WASTE DISPOSAL SITES AND FACILITIES
IN THE STATE OF COLORADO

SECTION 1	ADMINISTRATIVE INFORMATION 
1.1  General information
1.2  Definitions
1.3  Scope and effective date
1.4  Exemptions
1.5  Waiver processes and procedures 
1.6  Application for certificate of designation 
1.7  Solid waste authorization and fees
1.8  Reserved 
1.9  Inspections and enforcement

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2) Amend Section 4 of the Table of Contents of the Solid Waste Regulations by revising Section 4 to read as follows:  

PART 1 - REGULATIONS PERTAINING TO SOLID WASTE SITES AND FACILITIES

TABLE OF CONTENTS

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PART B
REQUIREMENTS AND INFORMATION CONCERNING
ALL SOLID WASTE DISPOSAL SITES AND FACILITIES
IN THE STATE OF COLORADO

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SECTION 4	FINANCIAL ASSURANCE REQUIREMENTS	
4.1 	General Provisions
	4.1.1	Purpose
	4.1.2	Scope and Availability
	4.1.3	Exemptions
	4.1.4	Duration of Financial Assurance Coverage
	4.1.5	Definition of terms as used in this Section
4.2	Closure Cost Estimates
4.3	Post-Closure Cost Estimates
4.4	Corrective Action Cost Estimates
4.5	Revising Closure, Post-Closure and Corrective Action Cost Estimates
	4.5.1	Annual Inflation Revision
4.5.2	Adjustments and Reimbursements of Financial Assurance Mechanisms
4.5.3	Five-Year Revised Cost Estimate
4.6	Financial Assurance Requirements
	4.6.1	General Requirements
	4.6.2	Trust Funds
	4.6.3	Letters of Credit
	4.6.4	Surety Bonds Guaranteeing Performance or Payment
	4.6.5	Insurance
	4.6.6	Corporate Financial Test
	4.6.7	Local Government Financial Test
	4.6.8	Corporate Guarantee
	4.6.9 	Local Government Guarantee
	4.6.10	Certificates of Deposit
	4.6.11	Use of Multiple Financial Mechanisms
	4.6.12	Use of a Financial Mechanism for Multiple Sites
4.6.13	Release of the Owner or Operator from the Requirements of this Section  

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3) Delete Section 1.8 (Financial Assurance Criteria), which includes §1.8.1 through §1.8.19, in its entirety and reserve the section to read as follows:  

SECTION 1.8	RESERVED

4) Amend Section 2.4 (Recordkeeping) to read as follows:  

2.4	RECORDKEEPING

2.4.1	All operating records shall be part of the engineering design and operation report and shall be maintained at the facility, unless otherwise approved by the Department.

2.4.2	The owner or operator of a solid waste disposal site and facility shall record and retain in an operating record the following information as it becomes available:

(A) Location restriction demonstration required under Section 3.1;

(B) Inspection records, and training procedures;

(C) Gas monitoring results from monitoring and any remediation plans required by Section 2.3;

(D) Design documentation for controlling leachate or gas condensate;

(E) Demonstrations, certifications, findings, data or documents required by Section 2.2;

(F) Closure and post closure care plans and any monitoring, testing, or analytical data as required by Section 2.5 and 2.6;

(G) Cost estimates and financial assurance documentation required by Section 4; and

(H) Information demonstrating compliance with waivers as required by Section 1.5.

5) Delete the existing placeholder for Section 4 (Construction Debris and inert Material Landfill Sites and Facilities [Reserved]) and add a new Section 4 (Financial Assurance Regulations) to read as follows:

SECTION 4.0	FINANCIAL ASSURANCE REQUIREMENTS

4.1 	General Provisions
	4.1.1	Purpose
	4.1.2	Scope and Availability
	4.1.3	Exemptions
	4.1.4	Duration of Financial Assurance Coverage
	4.1.5	Definition of terms as used in this Section
4.2	Closure Cost Estimates
4.3	Post-Closure Cost Estimates
4.4	Corrective Action Cost Estimates
4.5	Revising Closure, Post-Closure and Corrective Action Cost Estimates
	4.5.1	Annual Inflation Revision
	4.5.2	Adjustments and Reimbursements of Financial Assurance Mechanisms
	4.5.3	Five-Year Revised Cost Estimate
4.6	Financial Assurance Requirements
	4.6.1	General Requirements
	4.6.2	Trust Funds
	4.6.3	Letters of Credit
	4.6.4	Surety Bonds Guaranteeing Performance or Payment
	4.6.5	Insurance
	4.6.6	Corporate Financial Test
	4.6.7	Local Government Financial Test
	4.6.8	Corporate Guarantee
	4.6.9 	Local Government Guarantee
	4.6.10	Certificates of Deposit
	4.6.11	Use of Multiple Financial Mechanisms
	4.6.12	Use of a Financial Mechanism for Multiple Sites
	4.6.13	Release of the Owner or Operator from the Requirements of this Section   
		 

SECTION 4.0	FINANCIAL ASSURANCE REQUIREMENTS

4.1	General Provisions

4.1.1	Purpose:  Colorado law prohibits the operation of solid waste disposal sites and facilities without adequate financial assurance. The purpose of financial assurance is to ensure, at any point in the operating life of a solid waste disposal site and facility, the availability of adequate funds such that the State of Colorado may use those funds to pay the costs of closing the facility, the costs of needed post-closure care of the site and facility, and the costs associated with corrective action of any releases from the site and facility, in the case of bankruptcy or financial insolvency of the owner or operator. 

4.1.2	Scope and Applicability:  This Section 4 applies to any person owning or operating a solid waste disposal site and facility.  This includes all locations and facilities at which the deposit and final treatment of solid wastes occur, and includes the following facility types: 

(A) Landfills (Sections 2 and 3 of these regulations)
(B) Asbestos Waste Disposal Areas (Section 5 of these regulations)
(C) Incinerator Ash Disposal Sites (Section 6 of these regulations)
(D) Solid Waste Surface Impoundments (Section 9 of these regulations)
(E) Waste Tire Monofills, Waste Tire Processors, and Waste Tire Collection Facilities (Section 10 of these regulations)
(F) Solid Waste Incineration Facilities (Section 11 of these regulations)
(G) Water Treatment Plant Sludge Disposal Facilities (Section 12 of these regulations
(H) Medical Waste Facilities (Section 13 of these regulations)
(I)  Composting Facilities (Section 14 of these regulations), and
(J) Commercial Exploration and Production Waste Impoundments (Section 17 of these regulations)
(K) Waste Grease Transporters and Waste Grease Facilities (Section 18 of these regulations)

4.1.3	Exemptions:  This Section 4 does not apply to the following facility types:

(A) Transfer Stations (Section 7 of these regulations)
(B) Recycling Facilities (Section 8 of these regulations)

4.1.4   Duration of Financial Assurance Coverage:  Financial assurance coverage must be provided before the solid waste disposal site and facility commences operation or any waste is accepted and must continue until a release is granted by the department.

4.1.5	Definition of terms as used in this Section:

(A) Captive Insurance Company - a closely-held company owned by one or more organizations or parents, whose original purpose was, and may continue to be, to insure some or all of the risks of shareholders or affiliated organizations.

(B) Corrective Action – cleanup or remediation of contamination required by or performed under these Regulations and/or Subpart E of the federal regulations promulgated pursuant to the provisions of subtitle D of the federal “Resources Conservation and Recovery Act of 1976,” as amended. 

(C) Parent Company or Parent - a company that controls other businesses by owning an influential amount of voting stock or control. 

(D) Subsidiary - a company that is partly or completely owned by the parent company, which holds a controlling interest in the subsidiary company. 

(E) Consultation – the department will inform the local governing authority of their opportunity to consult on certain financial assurance activities per the requirements of this Section 4 and reasonable deadlines by which a response must be received. The department will consider the advice and input received from, and will consult with, the local governing authority as reasonable and appropriate under the circumstances.  

Consultation between the department and the local governing authority may consist of telephone conversations, written communications, or meetings, dependent upon the particular circumstances. In the case where a solid waste disposal site and facility is owned or operated by the local governing authority, the department shall consult the local governing authority on matters concerning financial assurance but shall retain approval authority.

(F) Notification - the department or solid wastes disposal site and facility will provide written notice to the local governing authority of certain financial assurance activities per the requirements of this Section 4. If, after notification, a local governing authority requests Consultation, the department shall engage in Consultation with the local governing authority.

4.2	Closure Cost Estimates

4.2.1 Prior to operating, the owner or operator of a solid waste disposal site and facility must have a detailed written estimate, in current dollars, approved by the department after Consultation, of the cost of closing the facility.

(A) The estimate must equal the cost of final closure at the point in the facility's active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan and is limited to the used area (current and previous) of the solid waste disposal site and facility.

(B) The closure cost estimate must be based on the costs of hiring a third party to close the facility.  A third party is a party who is neither a parent nor a subsidiary of the owner or operator.  The owner or operator may use costs for on-site disposal if the owner or operator can demonstrate that on-site disposal can be accomplished in conformance with other applicable sections of these regulations and disposal capacity will exist at all times over the life of the facility.

(C) The closure cost estimate may not incorporate any salvage value that may be realized with the sale of solid wastes, facility structures or equipment, land, or other assets associated with the facility at the time of partial or final closure.

(D) The owner or operator may not incorporate a zero cost for solid wastes that might have an economic value. 

4.3	Post-Closure Cost Estimates

4.3.1: Prior to operating, the owner or operator of a landfill, surface impoundment, land treatment unit, or any other unit where wastes will remain in the unit after closure must have a detailed written estimate, in current dollars, approved by the department after Consultation, of the cost of post-closure care of the site and facility.  

(A) The post-closure cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct post-closure care at such a site and facility.  A third party is a party who is neither a parent nor a subsidiary of the owner or operator.

(B) The post-closure cost estimate must be calculated by multiplying the annual post-closure costs by the number of years that post-closure care will be required. All solid waste disposal sites and facilities needing to implement post-closure care must initially provide enough financial assurance to provide for thirty (30) years of post-closure care, maintenance, and monitoring unless a shorter period has been approved by the department.

4.4	Corrective Action Cost Estimates

4.4.1: Once a corrective action plan has been approved, and when required by the department, the owner or operator of any facility with a release of solid waste(s) into the environment that requires corrective action must have a detailed written estimate, in current dollars, approved by the department after Consultation, of the cost of corrective action.  

(A) The corrective action cost estimate must be based on the costs to the owner or operator of hiring a third party to conduct corrective action activities.  A third party is a party who is neither a parent nor a subsidiary of the owner or operator.

(B) The corrective action cost estimate must be calculated by determining the initial remediation costs and adding a multiple of the annual corrective action costs for the number of years corrective action activities will be required.

4.5	Revising Closure, Post-Closure, and Corrective Action Cost Estimates

4.5.1 Annual Inflation Revision:  During the active life of the solid waste disposal site and facility, the owner or operator must annually revise the closure, post-closure, and any corrective action cost estimate for inflation and must submit this estimate for department approval.  This estimate must occur at least sixty (60) days prior to the anniversary date of the establishment of the financial instrument(s) used to comply with this Section 4.  For owners and operators using the financial test or guarantee, the revised cost estimate must be updated for inflation within thirty (30) days after the close of the entity's fiscal year and submitted for department approval.  The annual adjustment may be made by recalculating the maximum costs of closure, post-closure, and/or corrective action in current dollars, or by using an inflation factor derived from the most recent Implicit Price Deflator for Gross National Product as published by the U.S. Department of Commerce in its Survey of Current Business.  The inflation factor is the result of dividing the latest published annual Deflator by the Deflator for the previous year.

(A) The first adjustment is made by multiplying the original cost estimate by the inflation factor.  The result is the revised cost estimate.

(B) Subsequent adjustments are made by multiplying the latest revised cost estimate by the latest inflation factor.

4.5.2:  Adjustments and Reimbursements of Financial Assurance Mechanisms

(A)  Whenever the current closure, post-closure, and corrective action cost estimates increase to an amount greater than the current amount of the financial assurance mechanism, the owner or operator, within sixty (60) days after the increase, must either increase the value of the mechanism and submit evidence of such increase to the department and local governing authority or obtain other financial assurance to cover the increase.

(B)  Whenever the closure, post-closure, and corrective action cost estimates decrease, the financial assurance mechanism may be reduced to the amount of the current closure, post-closure, or corrective action cost estimate following the submittal of sufficient justification to the department and local governing authority and written approval by the department, with notification to the local governing authority. Justification for a decrease can include partial closure of a facility or any other occurrence that legitimately decreases the ultimate costs of closure, post-closure, or corrective action.  Such justification shall be made a permanent part of the operating record of the site and facility.

(C)  After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request releases for the amount of financial assurance covering the partial or final closure expenditures by submitting itemized receipts to the department. If the department concurs with the accuracy of the justification, the department shall notify the local governing authority, and the amount in excess of the current closure or post closure cost estimates shall be released. Additional procedures for partial expenditure releases may appear for each mechanism within Subsection 4.6.1(D).

(D)  If an alternate mechanism is approved by the department, or if the facility is released from the financial assurance requirement, the original mechanism will be returned to the facility.

4.5.3   Five-Year Revised Cost Estimate:  After department approval of the initial cost estimate, and during the active life of the facility, the owner or operator must replace original cost estimates with new cost estimates every five (5) years unless otherwise required by the department.  This five-year revised cost estimate is intended to capture changes in, or additions to, facility operations and must be a complete re-evaluation of the closure, post-closure, and corrective action costs.

4.5.4: The owner or operator must submit the closure, post-closure, and any corrective action cost estimates, and all annual, five-year revised cost estimates, or other revisions, to the department and the local governing authority.

4.6	Financial Assurance Requirements

4.6.1:  General Requirements

(A) All owners and operators must establish financial assurance for closure and post-closure of, and if necessary corrective action at, the solid waste disposal site and facility in the amounts determined by the cost estimates required in Sections 4.2 through 4.5 of these regulations.  

(B) The department shall Consult with the local governing authority as required by these regulations in the following circumstances:

(1) Prior to accepting a solid waste disposal site and facility’s initial financial assurance via an application for a Certificate of Designation or other application or department requirement.  

(2) Prior to accepting initial financial assurance for corrective action.  

(3) Prior to terminating a site and facility’s financial assurance pursuant to Section 4.6.13.

(4) As necessary in Section 4.6.12.

(C) No local governing authority shall require an applicant for a certificate of designation to obtain any financial assurance mechanism or amount in addition to that required by the provisions of these regulations. 

(D)  The following are allowable financial assurance mechanisms and instruments that an owner or operator may use, alone or in combination, subject to approval by the department:

(1)  Trust fund
(2)  Letter of credit
(3)  Surety bond
(4)  Insurance
(5)  Corporate financial test 
(6)  Local government financial test 
(7)  Corporate guarantee
(8)  Local government guarantee
(9)  Certificate of Deposit

(E) All owners and operators shall annually provide, concurrently to the department and the local governing authority, proof of sufficiency of the financial assurance required by these regulations.  

(F) An owner or operator may use a financial assurance mechanism specified in this section to meet the requirements of more than one facility. However, per Section 4.6.12, all solid waste disposal sites and facilities under a multiple facility financial instrument must be located in Colorado, and the owner and operator must be the same for all facilities unless special approval of the department is first obtained.

(G)  No certificate of designation shall be effective unless and until the required financial assurance mechanism has been fully implemented as required by this section.  Failure to properly maintain financial assurance as required by this section may result in the suspension or revocation of the certificate of designation.  No person shall operate a solid waste disposal site and facility without being in compliance with the financial assurance requirements contained in this Section 4. 

(H)  A financial assurance instrument may not be transferred to a new owner or operator unless, as part of the process, the assignment or transfer of the financial instrument(s) or alternate financial assurance has been reviewed and approved by the department and the local governing authority. 

(I)  The department will give written consent to the owner or operator to terminate the financial assurance mechanism identified Subsection 4.6.1(D) when:

(1) The owner or operator provides alternate financial assurance as specified in this Section; or

(2) The department, after Consultation with the local governing authority, releases the owner or operator from maintaining financial assurance for closure, post-closure care, or corrective action pursuant to Section 4.6.13. 

(J) In the event that the owner and operator are separate parties, both will be a part of any discussions prior to the release of the financial instrument.

(K)  The department shall assess a fee per Section 1.7.2 to offset the costs of the department’s review of the financial assurance information.

(L)  If at any time the department shall determine that an owner or operator has insufficient financial assurance or otherwise is not in full compliance with these regulations, it shall notify the owner or operator and may take whatever enforcement actions it deems necessary, including altering pay-in periods and schedules.  

(M) No release or reimbursement of funds will be made if a known release has occurred at a site/facility and the owner or operator does not then have sufficient financial assurance to implement the corrective action plan for such release.  Further, if within ninety (90) days of a known release, an owner or operator has not established sufficient financial assurance for that release, the department will take whatever enforcement actions it deems necessary.  This may include a recommendation to the local governing authority that they suspend or revoke the certificate of designation for the site and facility with the known release.  This may also include the department applying the available closure and post-closure funds to implement the corrective action and assess the owner or operator for any deficiency in the closure or post-closure funds which results.

(N) The department is authorized to expend such monies for the third party closure, post-closure, or corrective action as available to the department from the financial assurance mechanisms provided by the owner or operator of the solid waste disposal site and facility.    

(O) The department is authorized to contract with one or more private contractors to conduct the third-party closure, post-closure care, or corrective action at a solid waste disposal site and facility, as may be necessary.  

(1)  Any such contract shall be between the department and the private contractor and the owner or operator shall not be a party to such contract.

(2) The department may disallow a contractor because of conflicts of interest or other reasons.  

(3) The department may contract with the local governing authority that issued the certificate of designation to conduct such third party closure, post-closure care, or corrective action.

4.6.2 	Trust Funds 

(A)  Subject to department approval, an owner or operator may establish a trust fund which conforms to the requirements of this Section.  The trustee must be 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.  An owner or operator of a new or existing facility must submit an originally signed duplicate of the trust agreement to the department.  A trust fund must contain, at the end of the operating life of the facility, or within the timeframes defined in this section, sufficient funds to cover closure, post-closure and corrective action costs.  

(B)  The trustee, to be validated by the comptroller or banking commission, shall be the trust department of a federal or state chartered bank with capital and surplus of not less than $10,000,000, selected by the operator and acceptable to the department.  Said bank must be located and legally chartered to operate in one of the fifty (50) states.  The trustee shall direct the investment of funds in the trust, using the standard of care of a fiduciary. The investment objectives of the trust are primarily preservation of capital and access to liquidity, and secondarily investment return on capital investment. Investments in the trust may include fixed income mutual funds with average durations of less than five years; United States Treasury bills, notes and bonds with maturities less than ten years; United State agency bonds; money market mutual funds invested solely in United States Treasury or Agency bonds; pre-refunded municipal bonds backed by United State Treasuries or Agencies; bank certificates of deposit and money market accounts up to Federal Deposit Insurance Corporation (FDIC) insurance limits; commercial paper bonds rated “A2P2” or better, corporate bonds rated “AA” or better by Standard and Poor’s Financial Services, or any combination of these investments. If individual bonds are used, a minimum of 10 bonds shall be used with roughly equal spacing of maturities and with the intent to hold such bonds to maturity. No funds shall be released, disbursed, or transferred by the trustee from this trust without the express written authorization of the department.

(C)  The wording of the trust agreement must be identical to the wording specified in Appendix A, and no changes will be allowed without department approval. The trust agreement must be accompanied by a formal certification of acknowledgment.  Schedule A of the trust agreement must be updated within sixty (60) days after a change in the amount of the current cost estimate covered by the agreement or any change in facility name or ownership.

(D)  Trust Funds for Closure and Post-Closure for Landfills:  The following facility types will be considered “landfills” for the purposes of this Subsection 4.6.2(D): Landfills (covered by Sections 2 and 3 of these regulations); Asbestos Waste Disposal Areas (covered by Section 5 of these regulations);  Incinerator Ash Disposal Sites (covered by Section 6 of these regulations); Waste Tire Monofills (covered by Section 10 of these regulations); and Water Treatment Plant Sludge Disposal Facilities (covered by Section 12 of these regulations).

(1)  For landfills, payments into the trust fund for closure and post-closure by the owner or operator must, at a minimum, be made annually over the operating life of the facility or twenty (20) years, whichever period is shorter, as estimated in the closure and post closure plan.  This period is hereafter referred to as the "pay in period".  The payments into the trust fund must be made as follows:

(a)  For a new landfill, the first payment must be made before the initial receipt of waste.  A receipt from the trustee for this payment must be submitted by the owner or operator to the department and local governing authority before this initial receipt of waste.

(b)  A receipt for the initial payment must be submitted to the department by the trustee for both new and existing landfills.  The first payment must be at least equal to the current closure, and post closure cost estimate, divided by the number of years in the pay in period. 

The amount of each subsequent payment must be determined by this formula:
				CE - CV        
	NEXT PAYMENT = -----------------
 	                               	  Y

Where CE is the current closure and post-closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period. After the first year, and annually thereafter, the CE shall be multiplied by the preceding year's annual rate of inflation before subtracting CV.

(c)  In lieu of using the formula expressed in Subsection 4.6.2(D)(1)(b), the equivalent annual payments into the trust fund may be determined by calculating the net present value of CE.

(2)  The owner or operator may accelerate payments into the trust fund or may deposit the full amount of the current cost estimates at the time the fund is established, or at any time thereafter.  However, the value of the fund must be maintained at no less than the value that the fund would have if annual payments were made as specified in Subsection 4.6.2(D)(1).

(3)  If the owner or operator establishes a trust fund after having used one or more alternate mechanisms specified in Subsection 4.6.1(D), the first payment must be at least the amount that the fund would contain if the trust fund were established initially and all annual payments had been made.

(4)  Whenever the current closure and post-closure cost estimates increase or decrease, and are approved by the department, the owner or operator must recalculate the payments into the trust fund based on the new cost estimate (new CE).  If the current valuation of the fund is less than the amount which is required using the new CE, the owner or operator must, within sixty (60) days of the approval of the new estimate, either (a) deposit an amount into the fund such that the fund equals the amount in the new CE for the current point in the pay-in period, or (b) obtain other financial assurance as specified in this section to cover the difference.

(E)  Trust Funds for Closure and Post-Closure for Other Types of Solid Waste Disposal Sites and Facilities:  The following facility types will be considered other types of solid waste disposal sites and facilities for the purposes of this Subsection 4.6.2(E):  Solid Waste Surface Impoundments (covered by Section 9 of these regulations);  Solid Waste Incineration Facilities (covered by Section 11 of these regulations); Medical Waste Facilities (covered by Section 13 of these regulations); Composting Facilities (covered by Section 14 of these regulations); and Commercial Exploration and Production Waste Impoundments (covered by Section 17 of these regulations)

(1)  For all facilities listed in Subsection 4.6.2(E) above that were in operation prior to the effective date of this Section 4 (July 15, 2018), a trust fund may be funded as described in Subsection 4.6.2(D).  

(2)  For all new facilities listed in Subsection 4.6.2(E) above that were not in operation on the effective date of this Section 4 (July 15, 2018), a trust fund must be fully funded, with no pay-in period, and approved by the department before any waste is accepted in the facility.

(F)  Trust Funds for Corrective Action:  Whenever a trust fund will be used to assure performance of corrective action, the owner or operator will calculate a corrective action cost estimate as required by Section 4.4, submit it to the department for approval, and place 100% of the corrective action cost estimate amount into the closure and post-closure trust fund, or a separate trust fund, within sixty (60) days after department approval.

(G)  Reimbursements

(1)  Adjustments to the amount of a trust fund must comply with Section 4.5.2. 

(2)  If an owner or operator substitutes other financial assurance as specified in this section for all or part of the trust fund, the owner or operator may submit a written request to the department, and copy the local governing authority, for release of the amount in excess of the current cost estimate covered by the trust fund. 

(3)  Within sixty (60) days after approving a request from the owner or operator for release of funds as specified in this section, the department will instruct the trustee to release to the owner or operator such funds as the department specifies in writing.

(4)  After beginning partial or final closure, an owner or operator or another person authorized to conduct partial or final closure may request reimbursements for partial or final closure expenditures by submitting itemized receipts to the department.  The owner or operator may request reimbursements for partial closure only if sufficient funds are remaining in the trust fund to cover the maximum costs of closing the facility over its remaining operating life.  Within sixty (60) days after receiving receipts for partial or final closure activities, the department will instruct the trustee to make reimbursements in those amounts as the department determines that the partial or final closure expenditures are in accordance with the approved closure plan, or otherwise justified.  If the department has reason to believe that the maximum cost of closure over the remaining life of the facility will be significantly greater than the value of the trust fund, it may withhold reimbursements of such amounts as is deemed prudent until it determines after Consultation, that the owner or operator is no longer required to maintain financial assurance for final closure of the facility.  If the department does not instruct the trustee to make such reimbursements, it will provide the owner or operator with a detailed written statement of reasons.

(5)  An owner or operator or any other person authorized to conduct post-closure care may request reimbursements for post-closure care expenditures by submitting itemized bills to the department.  Within sixty (60) days after receiving bills for post-closure care activities, the department will instruct the trustee to make reimbursements in those amounts as the department specifies in writing, if the department determines that the post-closure care expenditures are in accordance with the approved post-closure plan or otherwise justified.  If the department does not instruct the trustee to make such reimbursements, it will provide the owner or operator with a detailed written statement of reasons.

(6)  If there is one trust fund for both closure and post-closure care, then there will not be any reimbursement for closure costs if there are not sufficient funds to cover both the remaining closure and post-closure care costs.

4.6.3	Letters of Credit

(A)  Subject to department approval, an owner or operator may obtain an irrevocable standby letter of credit from an institution that has the authority to issue such letters and whose operations are regulated and examined by a federal or state agency.   An owner or operator of a new facility must submit the letter of credit to the department.  The letter of credit must be effective before this initial receipt of waste.  

(B)  A letter of credit must be in full conformance with Article 5 of the uniform commercial code, C.R.S. 4-5-101 et seq., as amended.  

(C)  The wording of the letter of credit must be identical to the wording specified in Appendix A.

(D) The letter of credit must be irrevocable and issued for a period of at least one (1) year.  The letter of credit must provide that the expiration date will be automatically extended for a period of at least one (1) year unless, at least one hundred twenty (120) days before the current expiration date, the issuing institution notifies the owner or operator and the department by certified mail, or other trackable delivery service, of a decision not to extend the expiration date. Under the terms of the letter of credit, the one hundred twenty (120) days will begin on the date when the owner or operator and the department have received the notice, as evidenced by the return receipts. 

(E)  The letter of credit must be issued in an amount at least equal to the current closure, post-closure and corrective action cost estimates, less any amount covered by alternative assurance mechanisms.

(F)  Adjustments to the amount of a letter of credit must comply with Section 4.5.2. 

(G)  Following a determination that the owner or operator has failed to perform final closure or post-closure or corrective action in accordance with the closure or post-closure or corrective action plan and other permit requirements when required to do so, the department may draw on the letter of credit.

(H)  If the owner or operator does not establish alternate financial assurance as specified and obtain written approval of such alternate assurance from the department, the department will draw on the letter of credit.  The department may delay the drawing if the issuing institution grants an extension of the term of the credit.  During the last thirty (30) days of any such extension the department will draw on the letter of credit if the owner or operator has failed to provide alternate financial assurance as specified in this section and obtain written approval of such assurance from the department. The department will notify the local governing authority if it draws on the letter of credit. 

4.6.4	Surety Bonds Guaranteeing Performance or Payment 

(A)  Subject to department approval, an owner or operator may secure a guarantee from a surety company, in the form of a bond, that all closure, post-closure care and corrective action requirements will be fulfilled.  An owner or operator of a new facility must submit the bond to the department at least ninety (90) business days before waste is first received.  The bond must be effective before this initial receipt of waste.  The surety company issuing the bond and any co-sureties must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. Department of the Treasury, and should be conducting business in Colorado and issue the bond subject to the laws and jurisdiction of the state of Colorado.  If the surety is using reinsurance, a treasury reinsurance form must be submitted with the bond or within forty-five (45) days thereafter.  

(B)  The wording of the surety bond must be identical to the wording in Appendix A.

(C)  The bond must guarantee that the owner or operator will provide alternate financial assurance as specified in this Section 4, and obtain the approval of the department within (90) days after receipt by the owner or operator and the department of a notice of cancellation of the bond from the surety. 

(D)  Under the terms of the bond, the surety will become liable on the bond obligation when the owner or operator fails to perform as guaranteed by the bond.

(E)  The penal sum of the bond must be in an amount at least equal to the current closure, post-closure, and corrective action cost estimate, less amounts covered by alternative mechanisms.

(F)  Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail, or other trackable delivery service, to the owner or operator and to the department. Cancellation may not occur until one hundred twenty (120) days after the notice of cancellation has been received by both the owner or operator and the department, as evidenced by return receipts. The department will notify the local governing authority of any such cancellation. 

4.6.5  	Insurance

(A)  Subject to department approval, an owner or operator may satisfy the requirements of this Section by obtaining insurance which conforms to the requirements of this paragraph and submitting a certificate of such insurance to the department.  An owner or operator of a new facility must submit a copy of the insurance policy and all endorsements to the department at least ninety (90) days before the date on which waste is first received.  If an owner or operator changes a current insurance policy, the owner or operator must submit a copy of the proposed insurance policy and all endorsements to the department at least ninety (90) days before changing or replacing the insurance policy.  

(B) The insurer must be licensed to transact the business of insurance or be eligible to provide insurance as an excess or surplus lines insurer, in one or more states, and comply with the Title 10 Insurance Code, C.R.S., as amended.  The insurance company must be conducting business in Colorado and assure the policy is subject to the laws and jurisdiction of the State of Colorado. 

(C)  The wording of the certificate of insurance must be identical to the wording specified in Appendix A.

(D) The owner or operator shall submit annually to the department on the anniversary of the insurance policy the following information regarding the insurer’s qualifications:

(1) The most recent A.M. Best rating of A- (A minus) or better for the insurer; and

(2) Documentation demonstrating that the insurer is domiciled within an NAIC accredited jurisdiction and is licensed and deemed in good standing with the domiciliary regulator. 

(E) The owner or operator of a facility using a Captive Insurance Company, as that term is defined in Section 4.1.5, must do the following:

(1) Annually submit to the department on the anniversary of the insurance policy, items specified in Subsections 4.6.5(D)(1) and (2);

(2) Utilize a Captive Insurance Company that is domiciled in an NAIC accredited jurisdiction and is deemed in good standing with the domiciliary regulator;

(3) Annually submit to the department a Certificate of Good Standing for the Captive Insurance Company, or its equivalent issued by the domiciliary regulator; and

(4) If the parent company decides to cancel the captive insurance policy, or if the Captive Insurance Company no longer meets the requirements of this Subsection 4.6.5 (E), the owner or operator or Captive Insurance Company must provide a one hundred eighty (180) day notice to the department of their intent to cancel the policy and/or their inability to comply with this Section, and must put in place another financial assurance mechanism allowed in Subsection 4.6.1(D) before the end of the 180-day period.

(F) The department may disallow use of the insurer or the Captive Insurance Company by the owner or operator if the applicable requirements of Subsections 4.6.5(D)(1) and (2) and (E) are not met.

(G)  The insurance policy must be issued for a face amount at least equal to the current closure, post closure and corrective action cost estimate.  The term "face amount" means the total amount the insurer is obligated to pay under the policy.  Actual payments by the insurer will not change the face amount, although the insurer's future liability will be lowered by the amount of the payments.

(H)  The Insurance Policy:

(1)  Must guarantee that, where the department determines the owner or operator has failed to perform, funds will be available to the department to close, provide post-closure care of the site and facility, and to provide any necessary corrective action at the site and facility whenever closure, post-closure and corrective action occurs.  The policy must also guarantee that once closure, post-closure and corrective action begin, the insurer will be responsible for paying out funds, if department determines the owner or operator has failed to perform, up to an amount equal to the face amount of the policy, upon the direction of the department, to such party or parties as the department specifies.

(2)  Each policy must contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonable withheld. 

(I)  The owner or operator must maintain the policy in full force and effect until the department consents to termination of the policy by the owner or operator as specified in this section.  Failure to pay the premium, without substitution of alternate financial assurance as specified in this section, will constitute a violation of these regulations, warranting such remedy as the department deems necessary.  Such violation will be deemed to begin upon receipt by the department of a notice of future cancellation, termination, or failure to renew due to nonpayment of the premium, rather than upon the date of expiration. The department will notify the local governing authority in the event of any policy termination. 

(J)  The policy must provide that the insurer may not cancel, terminate, or fail to renew the policy except for failure to pay the premium.  The automatic renewal of the policy must, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy.  If there is a failure to pay the premium, the insurer may elect to cancel the policy by sending notice of cancellation by certified mail, or other trackable delivery service, to the owner or operator and the department, one hundred twenty (120) days in advance of cancellation. The department will notify the local governing authority of any such notice of cancellation.  However, cancellation, termination, or failure to renew may not occur and the policy, which shall contain a provision with the following terms and conditions, will remain in full force and effect in the event that on or before the date of expiration: 

(1)  The department, after Consultation with the local governing authority, deems the facility abandoned; or

(2)  The certificate of designation is terminated or revoked or a new certificate of designation is denied; or

(3)  Closure is ordered by the department or the local governing authority or court of competent jurisdiction; or

(4)  The owner or operator is named as debtor in a voluntary or involuntary proceeding under Title 11 (bankruptcy), U.S. Code; or

(5)  The premium due is paid by any person.

(K)  If the insurer cancels the policy, the owner or operator must obtain replacement financial assurance as required by this Section 4.  

(L)  All premiums shall be paid annually and proof of payment shall be supplied to the department and local governing authority. 

(M) Adjustments to the amount of an insurance policy must comply with Section 4.5.2. 

(N)  Commencing on the date that liability to make premium payments for the insurance policy occurs, the owner or operator will thereafter annually increase the face amount of the policy as required by Section 4.5.

(O)  Any policy issued pursuant to this section, including by a Captive Insurance Company, will specifically identify each facility covered and the amount of coverage for each facility. 

4.6.6	 Corporate Financial Test

(A)  Subject to department approval, an owner or operator may demonstrate financial assurance if characteristics of the owner’s or operator’s corporation meet the following: 

(1) The owner or operator must satisfy one of the following three conditions:

(a) A current rating for its senior unsubordinated debt of AAA, AA, or A as issued by Standard and Poor's or Aaa, Aa, or A as issued by Moody's; or

(b) A ratio of less than 1.5 comparing total liabilities to net worth; or

(c) A ratio of greater than 0.10 comparing the sum of net income plus depreciation, depletion and amortization, minus $10 million, to total liabilities.

(2) The tangible net worth of the owner or operator must be greater than:

(a) The sum of the current closure, post closure care, corrective action cost estimates and any other environmental obligations, including guarantees, covered by a financial test plus $10 million except as provided in Subsection 4.6.6(A)(2)(b).

(b) $10 million in net worth plus the amount of any guarantees that have not been recognized as liabilities on the financial statements provided all of the current closure, post-closure care, and corrective action costs and any other environmental obligations covered by a financial test are recognized as liabilities on the owner's or operator's audited financial statements, and subject to the approval of the department.

(3) The owner or operator must have assets located in the United States amounting to at least the sum of current closure, post-closure care, corrective action cost estimates and any other environmental obligations covered by a financial test.

(B) Record keeping and reporting requirements. 

(1) The owner or operator must place the following items into the facility's operating record:

(a) A letter signed by the owner's or operator's chief financial officer that:

(i) Lists all the current cost estimates covered by a financial test, including, but not limited to, cost estimates required for solid waste disposal sites and  facilities under Section 4 of these regulations and cost factors for all other environmental obligations, if applicable; and 

(ii) Provides evidence demonstrating that the owner/operator meets the conditions of either Subsection 4.6.6(A)(1)(a), or (b), or (c)  and Subsections 4.6.6(A)(2) and 4.6.6(A)(3).   

(b) A copy of the independent certified public accountant's unqualified opinion of the owner's or operator's financial statements for the latest full fiscal year. To be eligible to use the financial test, the owner's or operator's financial statements must receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance, with the potential exception for qualified opinions provided in the next sentence. The department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the department deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the financial test. If the department does not allow use of the test, the owner or operator must provide alternate financial assurance that satisfies the requirements of this Section.

(c) If the chief financial officer's letter providing evidence of financial assurance includes financial data showing that the owner or operator satisfies Subsection 4.6.6(A)(1)(b) or (c) that are different from data in the audited financial statements referred to in Subsections 4.6.6(B)(1) and (2) or any other audited financial statement or data filed with the Securities and Exchange Commission, then a special report from the owner's or operator's independent certified public accountant is required. The special report shall be based upon an agreed upon procedures of engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements, the findings of that comparison, and the reasons for any differences.

(d) If the chief financial officer's letter provides a demonstration that the owner or operator has provided financial assurance for environmental obligations regarding the solid waste disposal site and facility as provided in Subsection 4.6.6(A)(2)(b), then the letter shall include a report from the independent certified public accountant that verifies that all of the environmental obligations covered by a financial test have been recognized as liabilities on the audited financial statements, how these obligations have been measured and reported, and that the tangible net worth of the firm is at least $10 million plus the amount of any guarantees provided.

(2) An owner or operator must place the items specified in Subsection 4.6.6(B)(1) in the operating record and send a copy to the department indicating that these items have been placed in the operating record before the initial receipt of waste or before the effective date of the requirements of this Section, whichever is later in the case of closure, and post-closure care, or no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of these regulations.

(3) After the initial placement of items specified in Subsection 4.6.6(B)(1) in the operating record, the owner or operator must annually update the information and place updated information in the operating record and send a copy to the department within ninety (90) days following the close of the owner or operator's fiscal year. The department may provide up to an additional forty-five (45) days for an owner or operator who can demonstrate that ninety (90) days is insufficient time to acquire audited financial statements. The updated information must consist of all items specified in Subsection 4.6.6(B)(1).

(4) The owner or operator is no longer required to submit the items specified in this Subsection 4.6.6(B) or comply with the requirements of this Section 4.6.6 when:

(a) The owner or operator substitutes alternate financial assurance as specified in this section that is not subject to these record keeping and reporting requirements; or

(b) The owner or operator is released from the requirements of this Section in accordance with these regulations.

(5) If the owner or operator no longer meets the requirements of Subsection 4.6.6(A), the owner or operator shall, within one hundred twenty (120) days following the close of the owner or operator's fiscal year, obtain alternative financial assurance that satisfies the requirements of this Section, place the required submissions for assurance in the operating record, and notify the department that the owner or operator no longer meets the criteria of the financial test and that alternate financial assurance has been obtained.

(6) The department may, based on a reasonable belief that the owner or operator no longer meets the requirements of Subsection 4.6.6(A), require at any time the owner or operator to provide reports of its financial condition in addition to or including current financial test documentation as specified in Subsection 4.6.6(B). If the department finds that the owner or operator no longer meets the requirements of Subsection 4.6.6(A), the owner or operator must provide alternate financial assurance that meets the requirements of this Section.

(7) When calculating the current cost estimates for closure, post-closure care, corrective action, or the sum of the combination of such costs to be covered, and any other environmental obligations assured by a financial test referred to in this Section 4.6.6, the owner or operator must include cost estimates required for municipal solid waste disposal sites and facilities under this part, as well as cost estimates required for other environmental obligations, if applicable.

4.6.7	Local Government Financial Test   

(A)  Subject to department approval, an owner or operator may demonstrate financial assurance at least equal to the cost estimates for closure, post-closure care and corrective action if the owner or operator is a local government and meets the following:  

(1)  The owner or operator must satisfy one of the following two conditions:

(a)  If the owner or operator has outstanding, rated, general obligation bonds, that are not secured by insurance, a letter of credit, or other collateral or guarantee, it must have a current rating of Aaa, Aa, or A, as issued by Moody's, or AAA, AA, or A, as issued by Standard and Poor's on all outstanding general obligation bonds; or,

(b)  The owner or operator must satisfy each of the following financial ratios based on the owner or operator’s most recent audited annual financial statement:

(i)  A ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05; and

(ii)  A ratio of annual debt service to total expenditures less than or equal to 0.20; and

(2)  The owner or operator must prepare its financial statements and have them audited in conformity with generally accepted accounting principles for governments and have its financial statements audited by an independent certified public accountant.

(3)  A local government is not eligible to assure its obligations under this Section 4.6.7 if it:

(a)  Is currently in default on any outstanding general obligation bonds, or

(b)  Has an outstanding general obligation bond rated lower than Baa as issued by Moody's or BBB as issued by Standard and Poor's, or

(c)  Operated at a deficit equal to five percent or more of total annual revenue in each of the past two fiscal years, unless the owner or operator demonstrates, through the submission of an auditor's statement to the department, that this deficit was caused by expenditures from specific funds previously set aside and budgeted in prior fiscal years and not by general expenditures for the applicable fiscal year exceeding total annual revenue by an amount equal to or greater than five percent, or 

(d)  Receives an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant (or appropriate State agency) auditing its financial statement as required under Subsection 4.6.7(A)(2). However, the department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the department deems the qualification insufficient to warrant disallowance of the test.

(B)  Public Notice Component   

The local government owner or operator must place a reference to the closure, post-closure care, or corrective action costs assured through the financial test into its next comprehensive annual financial report (CAFR) or audited financial statement after the effective date of this Section or prior to the initial receipt of waste at the facility, whichever is later. Disclosure must include the nature and source of closure and post-closure care requirements, the reported liability at the balance sheet date, the estimated total closure and post-closure care costs remaining to be recognized, the percentage of landfill capacity used to date, and the estimated landfill life in years. A reference to corrective action costs must be placed in the CAFR not later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of these regulations. For the first year after the financial test is issued to assure costs at a particular facility, the reference may instead be placed in the operation record until issuance of the next available CAFR if timing does not permit the reference to be incorporated into the most recently issued CAFR or budget. For closure and post-closure costs, conformance with Government Accounting Standards Board Statement 18 assures compliance with this public notice.  The reference must include the amount of each cost-estimate and the year(s) in which the local government expects these costs to be incurred. References in the budget must occur as budgeted line items if the activities are to occur in the period covered by the budget, but may appear in a supplemental data section if the activities will not occur until after the period covered by the budget.

(C)  Recordkeeping and Reporting Requirements 

(1)  The local government owner or operator must place the following items in the facility's operating record and deliver a copy to the department:

(a)  A letter signed by the local government's chief financial officer that:

(i)  Lists all the current cost estimates covered by a financial test, as described in Subsection 4.6.7(B);

(ii)  Provides evidence and certifies that the local government meets the conditions of Subsections 4.6.7(A)(1)(a), 4.6.7(A)(1)(b), and 4.6.7(A)(1)(c); and

(iii)  Certifies that the local government meets the conditions of Subsection 4.6.7(D).

(b)  The local government's independently audited year-end financial statements for the latest fiscal year, including the unqualified opinion of the auditor who must be an independent, certified public accountant or an appropriate State agency that conducts equivalent comprehensive audits; and

(c)  A report to the local government from the local government’s independent Certified Public Accountant based on performing agreed upon procedures relative to the financial ratios required by Subsection 4.6.7(A)(1), if applicable, and the requirements of Subsections 4.6.7(A)(2) and 4.6.7(A)(3).  The Certified Public Accountant report should state the procedures performed and the Certified Public Accountant findings.

(d) A copy of the comprehensive annual financial report used to comply with this section and or certification that the requirements of General Accounting Standards Board Statement 18 have been met.  

(2)  The items required in Subsection 4.6.7(C)(1) must be placed in the facility operating record as follows:

(a)  In the case of closure and post-closure care, prior to the initial receipt of waste at the facility, or

(b)  In the case of corrective action, not later than one hundred twenty (120) days after the corrective action remedy is selected in accordance with the requirements of Section 2.2 and Appendix B6.

(3)  After the initial placement of the items in the facility's operating record, the local government owner or operator must update the information and place the updated information in the operating record within six (6) months following the close of the owner or operator's fiscal year, or as otherwise agreed to by the department.

(4)  The local government owner or operator is no longer required to meet the requirements of Subsection 4.6.7(C) when:

(a)  The owner or operator substitutes alternate financial assurance as specified in Subsection 4.6.7(C)(5); or

(b)  The owner or operator is released from the requirements of this Section in accordance with Section 4.6.13.

(5)  A local government must satisfy the requirements of the financial test at the close of each fiscal year. If the local government owner or operator no longer meets the requirements of the local government financial test it must, within two hundred ten (210) days following the close of the owner or operator's fiscal year, obtain alternative financial assurance that meets the requirements of Section 4, place the required submissions for that assurance in the operating record, and notify the department that the owner or operator no longer meets the criteria of the financial test and that alternate assurance has been obtained.

(6)  The department, based on a reasonable belief that the local government owner or operator may no longer meet the requirements of the local government financial test, may require additional reports of financial condition from the local government at any time. If the department finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of the local government financial test, the local government must provide alternate financial assurance in accordance with Subsection 4.6.7(C)(5).

(D)  Calculation of Costs to be Assured:  The portion of the closure, post-closure, and corrective action costs for which an owner or operator can assure under this paragraph is determined as follows:

(1)  If the local government owner or operator does not assure other environmental obligations through a financial test, it may assure closure, post-closure, and corrective action costs that equal up to 43 percent of the local government's total annual revenue.

(2)  If the local government assures other environmental obligations through a financial test it must add those costs to the closure, post-closure, and corrective action costs it seeks to assure under this Subsection 4.6.7(D). The total of all environmental obligations must not exceed 43 percent of the local government's total annual revenue.

(3)  The owner or operator must obtain an alternate financial assurance instrument for those costs that exceed the limits set in Subsections 4.6.7(D)(1) and (2).

4.6.8 	Corporate Guarantee. 

(A) Subject to department approval, an owner or operator may meet the requirements of this Section by obtaining a written corporate guarantee. The guarantor must be the direct or higher-tier parent corporation of the owner or operator, a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a “substantial business relationship” with the owner or operator. The guarantor must meet the requirements for owners or operators in Section 4.6.6 and must comply with the terms of the guarantee. A certified copy of the guarantee must be placed in the facility's operating record along with copies of the letter from the guarantor's chief financial officer and accountants' opinions. If the guarantor's parent corporation is also the parent corporation of the owner or operator, the letter from the guarantor's chief financial officer must describe the value received in consideration of the guarantee. If the guarantor is a firm with a “substantial business relationship” with the owner or operator, this letter must describe this “substantial business relationship” and the value received in consideration of the guarantee.

(B) The guarantee must be effective and all required submissions placed in the operating record and a copy submitted to the department before the initial receipt of waste or before the effective date of the requirements of these regulations whichever is later, in the case of closure and post-closure care, or in the case of corrective action no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of these regulations.

(C) The terms of the guarantee must provide that:

(1) If the owner or operator fails to perform closure, post-closure care, and/or corrective action of a facility covered by the guarantee, the guarantor will:

(a) Perform, or pay a third party to perform, closure, post-closure care, and/or corrective action as required (performance guarantee); or

(b) Establish a fully funded trust fund as specified in Section 4.6.2 in the name of the owner or operator (payment guarantee).

(2) The guarantee will remain in force for as long as the owner or operator is required to comply with the applicable financial assurance requirements or unless the guarantor sends prior notice of cancellation by certified mail, or other trackable delivery service, to the owner or operator and to the department. Cancellation may not occur, however, during the one hundred twenty (120) days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the department, as evidenced by the return receipts.

(3) If notice of cancellation is given, the owner or operator must, within ninety (90) days following receipt of the cancellation notice by the owner or operator and the department, obtain alternate financial assurance, place evidence of that alternate financial assurance in the facility operating record, and notify the department and the local governing authority. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within one hundred twenty (120) days of the cancellation notice, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the department and the local governing authority.

(D) If a corporate guarantor no longer meets the requirements of Subsection 4.6.6(A), the owner or operator must, within ninety (90) days, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the department and the local governing authority.  If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within the next thirty (30) days.

(E) The owner or operator is no longer required to meet the requirements of this Section 4.6.8 when:

(1) The owner or operator substitutes alternate financial assurance as specified in this section; subject to department approval or

(2) The owner or operator is released by the department after Consultation from the requirements of this Section in accordance with these regulations.

4.6.9	Local Government Guarantee  

(A) Subject to department approval, an owner or operator may meet the requirements of this Section by obtaining a written guarantee provided by a local government.  The guarantor must meet the requirements of the local government financial test in Section 4.6.7, and must comply with the terms of a written guarantee.

(B)  Terms of the Written Guarantee.  The guarantee must be effective before the initial receipt of waste or before the effective date of this Section, whichever is later, in the case of closure, post-closure care, or no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of these regulations. The guarantee must provide that:

(1)  If the owner or operator fails to perform closure, post-closure care, and/or corrective action of a facility covered by the guarantee, the guarantor will:

(a)  Perform, or pay a third party to perform, closure, post-closure care, and/or corrective action as required; or

(b)  Establish a fully funded trust fund as specified in Section 4.6.2 in the name of the owner or operator.

(2)  The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail, or other trackable delivery service, to the owner or operator and to the department. Cancellation may not occur, however, during the one hundred twenty (120) days beginning on the date of receipt of the notice of cancellation by both the owner or operator and the department, as evidenced by the return receipts.

(3)  If a guarantee is canceled, the owner or operator must, within ninety (90) days following receipt of the cancellation notice by the owner or operator and the department, obtain alternate financial assurance, place evidence of that alternate financial assurance in the facility operating record, and notify the department. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within one hundred twenty (120) days following the guarantor's notice of cancellation, place evidence of the alternative assurance in the facility operating record, and notify the department.

(C)  Recordkeeping and Reporting  

(1)  The owner or operator must place a certified copy of the guarantee along with the items required under Section 4.6.7 into the site and facility's operating record before the initial receipt of waste or before the effective date of this section, whichever is later, in the case of closure, post-closure care, or no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of these regulations.

(2)  If a local government guarantor no longer meets the requirements of Section 4.6.9, the owner or operator must, within ninety (90) days following the close of the guarantor's fiscal year, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the department. If the owner or operator fails to provide alternate financial assurance within the 90-day period, the guarantor must provide that alternate assurance within next thirty (30) days.

(3)  A local government guarantor must satisfy the requirements for the local government guarantee at the close of each fiscal year. A demonstration that the local government meets all requirements of the local government guarantee under this section of the regulations must be placed in the operating records and with the department within one hundred eighty (180) days following the close of the guarantor's fiscal year.

4.6.10	 Certificates of Deposit 

(A)  Subject to department approval, an owner or operator may establish a certificate of deposit.   An owner or operator of a new or existing facility must submit the original certificate of deposit to the department with a copy to the local governing authority. The certificate of deposit must be effective before the initial receipt of waste. The issuing institution must have the authority to issue certificate of deposits and must be regulated, insured, and examined by a federal or state agency. 

(B)  The issuing institution, to be validated by the comptroller or banking commission, shall be a federal or state chartered bank with capital and surplus of not less than $10,000,000, selected by the operator and acceptable to the department.  Said bank must be located and legally chartered to operate in one of the fifty (50) states.  The institution shall direct the investment of funds in the certificate of deposit, using the standard of care of a fiduciary.  No funds shall be released, disbursed, or transferred by the institution from this certificate of deposit without the express written authorization of the department. 

(C)  The wording of the certificate of deposit must be identical to the wording specified in Appendix A, unless otherwise approved by the department.

(D)  Certificates of Deposit for Closure and Post-Closure Care for Landfills:  The following facility types will be considered “landfills” for the purposes of this Subsection 4.6.10(D): Landfills (covered by Sections 2 and 3 of these regulations); Asbestos Waste Disposal Areas (covered by Section 5 of these regulations);  Incinerator Ash Disposal Sites (covered by Section 6 of these regulations); Waste Tire Monofills (covered by Section 10 of these regulations); and Water Treatment Plant Sludge Disposal Facilities (covered by Section 12 of these regulations).

(1)  For landfills, payments into the certificate of deposit for closure, post-closure and corrective action by the owner or operator must, at a minimum, be made annually over the operating life of the facility or twenty  (20) years, whichever period is shorter, as estimated in the closure and post closure plan.  This period is hereafter referred to as the "pay-in period".  The payments into the certificate of deposit must be made as follows:

(a)  For a new landfill, the first payment must be made before the initial receipt of waste.  A receipt from the issuing institution for this payment must be submitted by the owner or operator to the department before this initial receipt of waste.

(b)  A receipt for the initial payment must be submitted to the department by the issuing institution for both new and existing landfills.  The first payment must be at least equal to the current closure and post-closure cost estimate, divided by the number of years in the pay-in period. 

The amount of each subsequent payment must be determined by this formula:
			CE - CV        
NEXT PAYMENT = -----------------
			Y

Where CE is the current closure and post-closure cost estimate, CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period. After the first year, and annually thereafter, the CE shall be multiplied by the preceding year's annual rate of inflation before subtracting CV.

(c)  In lieu of using the formula expressed in Subsection 4.6.10(D)(1), the equivalent annual payments into the certificate of deposit may be determined by calculating the net present value of CE.

(2)  The owner or operator may accelerate payments into the certificate of deposit or may deposit the full amount of the current cost estimates at the time the fund is established, or at any time thereafter.  However, the value of the certificate of deposit must be maintained at no less than the value that the certificate of deposit would have if annual payments were made as specified in Subsection 4.6.10(D)(1).

(3)  If the owner or operator establishes a closure and post-closure certificate of deposit after having used one or more alternate mechanisms specified in Subsection 4.6.1(D), the first payment must be at least the amount that the certificate of deposit would contain if the certificate of deposit were established initially and all annual payments had been made.

(4)  Whenever the current closure and post-closure cost estimates increase or decrease, and are approved by the department, the owner or operator must recalculate the payments into the certificate of deposit based on the new cost estimate (new CE).  If the current valuation of the certificate of deposit is less than the amount which is required using the new CE, the owner or operator must, within sixty (60) days of the approval of the new estimate, either (a) deposit an amount into the certificate of deposit such that the fund equals the amount in the new CE for the current point in the pay-in period, or (b) obtain other financial assurance as specified in this section to cover the difference.

(E)  Certificates of Deposit for Closure and Post-Closure Care for Other Types of Solid Waste Disposal Sites and Facilities:  The following facility types will be considered other types of solid waste disposal sites and facilities for the purposes of this Subsection 4.6.10(E):  Solid Waste Surface Impoundments (covered by Section 9 of these regulations);  Solid Waste Incineration Facilities (covered by Section 11 of these regulations); Medical Waste Facilities (covered by Section 13 of these regulations); Composting Facilities (covered by Section 14 of these regulations); and Commercial Exploration and Production Waste Impoundments (covered by Section 17 of these regulations)

(1)  For all facilities listed in this section that were in operation prior to the effective date of this Section 4 (July 15, 2018), a certificate of deposit may be funded as described in Subsection 4.6.10(D).  

(2)  For all new facilities listed in Subsection 4.6.10(E) above that were not in operation on the effective date of this Section 4 (July 15, 2018), a certificate of deposit must be fully funded, with no pay-in period, and approved by the department with Consultation before any waste is accepted in the facility.

(F) Certificate of Deposit for Corrective Action:  Whenever a certificate of deposit will be used to assure performance of corrective action, the owner or operator will calculate a corrective action cost estimate as required by Section 4.4, submit it to the department for approval, and place 100% of the corrective action cost estimate amount into the closure and post-closure certificate of deposit, or a separate certificate of deposit, within sixty (60) days after department approval.

(G) The certificate of deposit must be accompanied by an original signed copy of a Collateral Assignment of Certificate of Deposit form. The wording of the collateral assignment of certificate of deposit must be identical to the wording specified in Appendix A, unless otherwise approved by the department.

(H)  The certificate of deposit must provide that the expiration date will be automatically extended unless, at least sixty (60) days before the current expiration date, the issuing institution notifies the owner or operator and the department and the local governing authority, by certified mail or other trackable delivery service, of a decision not to extend the expiration date.  Under the terms of the certificate of deposit, the sixty (60) days will begin on the date when the owner or operator and the department has received the notice, as evidenced by the return receipts. The issuing institution shall give sixty (60) day notification of maturity of the certificate of deposit to the department and the owner or operator. If the owner or operator, the department, and the local governing authority have received notice from the issuing institution that it has decided not to extend the certificate of deposit beyond the current expiration date, the owner or operator must establish adequate alternative financial assurance as required by these regulations.  If the owner or operator does not establish alternate financial assurance and obtain written approval of such alternate assurance from the department within forty-five (45) days of such notice by the issuing institution, the department will withdraw the money in the certificate of deposit. The department will notify the local governing authority if the department draws on the certificate of deposit. The money will be kept by the department until needed for closure, post-closure, and/or corrective action or until the owner or operator has established a department-approved alternate financial assurance mechanism.

(I)  The issue amount of the certificate of deposit must be in an amount at least equal to the current closure, post-closure and corrective action cost estimates, less amounts covered by alternative mechanisms.

(J)  Following a determination that the owner or operator has failed to perform final closure or post closure or corrective action in accordance with the closure or post closure or corrective action plan and other permit requirements when required to do so, the department may draw on the certificate of deposit.

(K)  The department will return the certificate of deposit to the issuing institution for termination when the requirements of Section 4.5.2 have been satisfied.

4.6.11	Use of Multiple Financial Mechanisms:   

An owner or operator may satisfy the requirements of this Section by establishing more than one financial mechanism per solid waste disposal site and facility.  The mechanisms must be as specified in Subsection 4.6.1(D) of this Section, except that it is the combination of mechanisms, rather than the single mechanism, which must provide full financial assurance for an amount at least equal to the current closure, post-closure and corrective action cost estimates.  The amount of financial assurance for each financial mechanism shall be stated on each agreement per these Regulations.  When use of a financial mechanism for closure and post-closure care or corrective action of the site and facility becomes necessary, the department may choose the order in which to use the mechanisms or may choose to use all concurrently. The department will notify the local governing authority how the department will be draw upon the mechanism(s). 

4.6.12	Use of a Financial Mechanism for Multiple Facilities:  

An owner or operator may use a financial assurance mechanism specified in Subsection 4.6.1(D) to meet the requirements of more than one solid waste disposal site and facility; provided, however, that all solid waste disposal sites and facilities are located in Colorado and the owner and operator are the same, unless special approval of the department, after Consultation with the local governing authority, is first obtained.  Evidence of financial assurance submitted to the department and the local governing authority must include a list showing, for each facility, name, address, and the amount of funds for closure assured by the mechanism.  The amount of funds available through the mechanism must be no less than the sum of funds that would be available if separate mechanisms have been established and maintained for each site and facility.  In directing funds available through the mechanism for closure, post-closure or corrective action of any of the sites and facilities covered by the mechanism, the department, with notice to the local governing authority, may direct only the amount of funds designated for that site and facility, unless the owner or operator agrees to the use of additional funds available under the mechanism. 

4.6.13	 Release of the Owner or Operator from the Requirements of this Section.   After receiving certifications from the owner or operator and a Colorado registered professional engineer that final closure, post-closure and corrective action has been completed in accordance with the approved plans, the department shall verify that the closure, post-closure and corrective action has met the requirements as established and shall Consult with the local governing authority.  Once verified, the department will notify the owner and operator that they are no longer subject to the requirements of this Section.

If there is reason to believe that the closure, post-closure and corrective action activities have not been made in accordance with the approved plan(s), the department shall provide the owner or operator with a detailed written statement of any deficiencies.

4.6.14   Failure to properly maintain financial assurance as required by this Section 4 and the certificate of designation may result in the suspension or revocation of a certificate of designation.

6) Revise Section 9.2.2 to read as follows:

9.2.2 FINANCIAL ASSURANCE:  

The owner or operator of a Type A waste impoundment shall establish and maintain financial assurance in accordance with Section 4 of these Solid Waste Regulations.  

7) Revise Section 9.2.5 to read as follows:

9.2.5 CLOSURE:  The owner or operator of each Type A waste impoundment shall develop a closure plan and submit it for Department approval.  The closure plan must present sufficient detail to support the closure cost estimates required in Sections 4 and 9.2.2 above and to enable the Department to evaluate the adequacy of financial assurance.   For some Type A impoundments, the scope of the closure plan will be limited to sludge and impacted soil removal, disposal and verification sampling to ensure residual contamination is below acceptable levels in soil and ground water.  

8) Amend Section 9.3.3 by revising paragraph (J) to read as follows:

9.3.3 FACILITY OPERATION REQUIREMENTS

The owners or operator shall operate a Type B Waste Impoundment in accordance with the approved EDOP.  

	*******  

(J) Financial Assurance:  The owner or operator shall maintain financial assurance of an adequate amount to cover closure and post-closure care costs in accordance with Section 4 of these Solid Waste Regulations.

9) Amend Section 9.3.4 by revising paragraph (F)(1)(i) to read as follows:

9.3.4 ENGINEERING DESIGN AND OPERATIONS PLAN  

*******

(F) Closure Plan:  The EDOP shall include a closure plan that describes the steps necessary to close each impoundment at any point during its active life and at the end of the facility’s active life.  The facility may either: 1) close the waste in place as a solid waste landfill in accordance with these Solid Waste Regulations, or 2) remove all solid waste and residual contamination to meet unrestricted use concentrations.  Option 2, also known as “clean closure,” eliminates the need for post-closure care.  Both Option 1 and Option 2 require the owner or operator of a waste impoundment to develop a closure plan.

(1) 	The closure plan shall include the following information consistent with Section 9.3.6:
			
			*******
	
(i) Cost estimates for closure and post-closure and proof of financial assurance equal to or greater than those cost estimates consistent with Section 4 of the solid Waste Regulations.

10) Amend Section 10.5.5 to read as follows:

10.5.5  WASTE TIRE MONOFILL FINANCIAL ASSURANCE 

Any person who owns or operates a Waste Tire Monofill must maintain financial assurance for any required reclamation and for closure and post-closure care of the Facility pursuant to section 4 of these Regulations.

11) Amend Section 10.6.6 to read as follows:

10.6.6 WASTE TIRE PROCESSOR FINANCIAL ASSURANCE 

All Waste Tire Processors must maintain financial assurance for any required reclamation and for closure and post-closure care of the Facility pursuant to section 4 of these Regulations.

12) Amend Section 10.8.6 to read as follows:

10.8.6  WASTE TIRE COLLECTION FACILITY FINANCIAL ASSURANCE 

All owners or operators of Waste Tire Collection Facilities must maintain financial assurance for any required reclamation and for closure and post-closure care of the Facility pursuant to section 4 of these Regulations.

13) Amend Section 13.7.3 to read as follows:

13.7	ENGINEERING DESIGN AND OPERATION PLAN REQUIREMENTS FOR COMMERCIAL STORAGE AND TREATMENT FACILITIES

	*******

	13.7.3 	Fees and financial assurance - All medical waste facilities subject to regulation 				under this Section 13.7 shall be subject to applicable solid waste fees as required 			under Section 1.7 and financial assurance as required under Section 4 of these 			regulations.

14) Amend Section 14.2.2(B) to read as follows:

14.2.2  Class I Composting Facility Pre-Operations Requirements

*******  

(B) Financial Assurance: Prior to commencing composting or feedstock storage, the owner/operator Class I composting facility must establish financial assurance in accordance with Section 4 of these Regulations.

*******

15) Amend Section 14.2.4(B) to read as follows:

14.2.4  Class I Composting Facility Operational Requirements

*******

(B) Financial Assurance: The owner/operator of a Class I composting facility must maintain financial assurance in accordance with Section 4 of these Regulations.

*******

16) Amend Section 14.3.2(B) to read as follows:

14.3.2  Class II Composting Facility Pre-Operations Requirements  

*******  

(B) Financial Assurance: Prior to commencing composting or feedstock storage, the owner/operator Class II composting facility must establish financial assurance in accordance with Section 4 of these Regulations.

*******  

17) Amend Section 14.3.5(B) to read as follows:

14.3.5  Class II Composting Facility Design and Operations Plan: Operations

*******  

(B) Financial Assurance: The EDOP for a Class II composting facility must include current financial assurance estimates in accordance with Section 4 of these Solid Waste Regulations.  A Class II composting facility must maintain adequate financial assurance in accordance with its EDOP and with Section 1.8 of these Solid Waste Regulations.

*******

18) Amend Section 14.4.2(B) to read as follows:

14.4.2  Class III Composting Facility Pre-Operations Requirements	 	

*******  

(B) Financial Assurance: Prior to commencing composting or feedstock storage, the owner/operator Class III composting facility must establish financial assurance in accordance with Section 4 of these Regulations.

*******

19) Amend Section 14.4.5(B) to read as follows:

14.4.5  Class III Composting Facility Design and Operations Plan: Operations 

*******   . 

(B) Financial Assurance: The EDOP for a Class III composting facility must include current financial assurance estimates in accordance with Section 4 of these Solid Waste Regulations.  A Class III composting facility must maintain adequate financial assurance in accordance with its EDOP and with Section 1.8 of these Solid Waste Regulations.

*******

20) Amend Section 17.3.3(N) to read as follows:

17.3.3 Operating Requirements

*******

17.3.3(N) Financial Assurance:  Financial assurance of an adequate amount to cover closure and post-closure care costs shall be established in accordance with Section 4 of these Solid Waste Regulations.

21) Amend Section 18.3.5 to read as follows:

18.3.5 FINANCIAL ASSURANCE
	
	A person transporting a load of more than 55 gallons of waste grease at one time must acquire and maintain financial assurance in the amount of $10,000 for the cleanup and proper disposal of waste grease in accordance with Section 4 of these Regulations.	

22) Amend Section 18.4.7 to read as follows:

18.4.7 FINANCIAL ASSURANCE
	
	All Waste Grease Facilities must acquire and maintain financial assurance for any required reclamation and for closure of the Facility in accordance with Section 4 of these Regulations.
23) Amend Appendix A (Financial Assurance Instrument Language) to read as follows:

Appendix A
FINANCIAL ASSURANCE INSTRUMENT LANGUAGE

WORDING OF THE INSTRUMENTS

I.	(A)	Trust Agreement

A trust agreement for a trust fund, in this section, must be worded as follows, except that instruction in brackets are to be replaced with the relevant information and the brackets deleted:

Trust Agreement

Trust Agreement, the "Agreement", entered into as of [date] by and between [name of the owner or operator], a [name of state][insert "corporation", "partnership", "association", or "proprietorship"], the "Grantor", and [name of corporate trustee], [insert "incorporated in the State of Colorado" or "a national bank"], the "Trustee."

Whereas, the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (“the department”), a regulatory agency of the State of Colorado, has established certain regulations applicable to the Grantor, requiring that an owner or operator of a solid waste disposal site and facility shall provide assurance that funds will be available when needed for closure post‑closure and corrective action care of the facility,

Whereas, the Grantor has elected to establish a trust fund to provide all or a part of such financial assurance for the facilities identified herein,

Whereas, the Grantor, acting through its duly authorized officers, has selected the Trustee to be the trustee under this Agreement, and the Trustee is willing to act as trustee,

Now, therefore, the Grantor and the Trustee agree as follows:

Section 1. Definitions as used in this Agreement:

(A)  The term "Grantor" means the owner or operator who enters into this Agreement and any successors or assignors of the Grantor.

(B)  The term "Trustee" means the Trustee who enters into this Agreement and any successor Trustee.

Section 2.  Identification of facilities and cost estimates This Agreement pertains to the facilities and cost estimates identified on attached Schedule A [on Schedule A, for each facility list the  name, address, and the current closure and/or post‑closure cost estimates, and/or corrective action, or portions thereof, for which financial assurance is demonstrated by this Agreement].

Section 3.  Establishment of Fund.  The Grantor and the Trustee hereby establish a trust fund, the "Fund", for the benefit of the department.  The Grantor and the Trustee intend that no third party have access to the Fund except as herein provided.  The Fund is established initially as consisting of the property which is acceptable to the Trustee, described in Schedule B attached hereto.  Such property and any other property subsequently transferred to the Trustee is referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee pursuant to this Agreement.  

The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided.  The Trustee shall not be responsible nor shall it undertake any responsibility for the amount or adequacy of, nor any duty to collect from the Grantor, any payments necessary to discharge any liabilities of the Grantor established by the department.

Section 4.  Payment for closure, post-closure and corrective action care
The Trustee shall make payments from the Fund as the department shall direct, in writing, to provide for the payment of the costs of closure, and/or corrective action, and/or post‑closure care of the facilities covered by this Agreement.  The Trustee shall reimburse the Grantor or other persons as specified by the department from the Fund for closure, post‑closure and corrective action expenditures in such amount as the department shall direct in writing.  In addition, the Trustee shall refund to the Grantor such amounts as the department specifies in writing.  Upon refund, such funds shall no longer constitute part of the Fund as defined herein.

Section 5.  Payment comprising the Fund  Payments made to the Trustee for the Fund shall consist of cash or securities acceptable to the Trustee.

Section 6.  Trustee management  The Trustee shall invest and reinvest the principal and income of the Fund and keep the Fund invested as a single fund, without distinction between principal and income, in accordance with general investment policies and guidelines which the Grantor may communicate in writing to the Trustee from time to time, subject, however, to the provisions of this section.  In investing reinvesting, exchanging, selling, and managing the Fund, the Trustee shall discharge his duties with respect to the Fund solely in the interest of the beneficiary and with the care, skill, prudence, and diligence under the circumstances then prevailing which persons of prudence, acting in a like capacity and familiar with such matters, would use in the conduct of an enterprise of a like character and with like aims; except that:

(A)  Securities or other obligations of the Grantor, or any other owner or operator of the facilities, or any of their affiliates as defined in the Investment Company Act of 1940, as amended, 15 U.S.C. 80A‑2.(A), shall not be acquired or held, unless they are securities or other obligations of the federal or a state government;

(B)  The Trustee is authorized to invest the Fund in time or demand deposits of the Trustee, to the extent insured by an agency of the federal or state government; and

(C)  The Trustee is authorized to hold cash awaiting investment or distribution uninvested for a reasonable time and without liability for the payment of interest thereon.

(D)  The investment objectives of the Trust are primarily preservation of capital and access to liquidity, and secondarily investment return on capital investment. Investments in the Trust may include fixed income mutual funds with average durations of less than five years; United States Treasury bills, notes and bonds with maturities less than ten years; United State agency bonds; money market mutual funds invested solely in United States Treasury or Agency bonds; pre-refunded municipal bonds backed by United State Treasuries or Agencies; bank certificates of deposit and money market accounts up to Federal Deposit Insurance Corporation (FDIC) insurance limits; commercial paper bonds rated “A2P2” or better, corporate bonds rated “AA” or better by Standard and Poor’s Financial Services, or any combination of these investments. If individual bonds are used, a minimum of 10 bonds shall be used with roughly equal spacing of maturities and with the intent to hold such bonds to maturity.

Section 7.  Commingling and investment  The Trustee is expressly authorized in its discretion:

(A)  To transfer from time to time any or all of the assets of the Fund to any common, commingled, or collective trust fund created by the Trustee in which the Fund is eligible to participate, subject to all of the provisions thereof, to be commingled with the assets of other trusts participating therein.

Section 8.  Express powers of Trustee   Without in any way limiting the powers and discretions conferred upon the Trustee by the other provision of this Agreement or by law, the Trustee is expressly authorized and empowered:

(A)  To sell, exchange, convey, transfer, or otherwise dispose of any property held by it, by public or private sale.  No person dealing with the Trustee shall be bound to see to the application of the purchase money or to inquire into the validity or expediency of any such sale or other disposition;

(B)  To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all other instruments that may be necessary or appropriate to carry out the powers herein granted;

(C)  To register any securities held in the Fund in its own name or in the name of a nominee and to hold any security in bearer form or in book entry, or to combine certificates representing such securities with certificates of the same issue held by the Trustee in other fiduciary capacities, or to deposit or arrange for the deposit of such securities in a qualified central depository even though, when so deposited, such securities may be merged and held in bulk in the name of the nominee of such depository with other securities deposited therein by another person, or to deposit or arrange for the deposit of any securities issued by the United States Government, or any agency or instrumentality thereof, with a Federal Reserve bank, but the books and records of the Trustee shall at all times show that all such securities are part of the Fund;

(D)  To deposit any cash in the Fund in interest‑bearing accounts maintained or savings certificates issued by the Trustee, in its separate corporate capacity, or in any other banking institution affiliated with the Trustee, to the extent insured by an agency of the Federal or State government; and 

(E)  To compromise or otherwise adjust all claims in favor of or against the Fund.

Section 9.  Taxes and expenses  All taxes of any kind that may be assessed or levied against or in respect of the Fund and all brokerage commissions incurred by the Fund shall be paid from the Fund.  All other expenses incurred by the Trustee in connection with the administration of this Trust, including fees for legal services rendered to the Trustee, the compensation of the trustee to the extent not paid directly by the Grantor, and all other proper charges and disbursements of the Trustee shall be paid from the Fund.

Section 10.  Annual valuation  The Trustee shall annually, at least 30 days prior to the anniversary date of establishment of the Fund, furnish to the Grantor and to the department a statement confirming the value of the Trust.  Any securities in the Fund shall be valued at market value as of no more than 60 days prior to the anniversary date of establishment of the Fund.  The failure of the Grantor to object in writing to the Trustee within 90 days after the statement has been furnished to the Grantor and the department shall constitute a conclusively binding assent by the Grantor, barring the Grantor from asserting any claim or liability against the Trustee with respect to matters disclosed in the statement.

Section 11.  Advice of counsel  The Trustee may from time to time consult with counsel, who may be counsel to the Grantor, with respect to any question arising as to the construction of this Agreement or any action to be taken hereunder.  The Trustee shall be fully protected, to the extent permitted by law, in acting upon the advice of counsel.

Section 12.  Trustee compensation  The Trusteee shall be entitled to reasonable compensation for its services as agreed upon in writing from time to time with the Grantor.

Section 13.  Successor Trustee  The Trustee may resign or the Grantor may replace the Trustee, but such resignation or replacement shall not be effective until the Grantor has appointed a successor trustee and this successor accepts the appointment.  The successor trustee shall have the same powers and duties as those conferred upon the Trustee hereunder.  Upon the successor trustee's acceptance of the appointment, the Trustee shall assign, transfer and pay over to the successor trustee the funds and properties then constituting the Fund.  If for any reason the Grantor cannot or does not act in the event of the resignation of the Trustee, the Trustee may apply to a court of competent jurisdiction for the appointment of a successor trustee or for instructions.  The successor trustee shall specify the date on which it assumes the administration of the Trust in a writing sent to the Grantor, the department, and the present Trustee by certified mail, or other trackable delivery service, 10 days before such change becomes effective.  Any expenses incurred by the Trustee as a result of any of the acts contemplated by this Section 13 shall be paid as provided in Section 9.

Section 14.  Instructions to the Trustee  All orders, requests, and instructions by the Grantor to the Trustee shall be in writing, signed by such persons as are designated in the attached Exhibit A or such other designees as the Grantor may designate by amendment to Exhibit A.  The Trustee shall be fully protected in acting without inquiry in accordance with the Grantor's orders, requests, and instructions. All orders, requests, and instructions by the department to the Trustee shall be in writing, signed by the director or his designees, and the Trustee shall act and shall be fully protected in acting in accordance with such orders, requests, and instructions.  The Trustee shall have the right to assume, in the absence of written notice to the contrary, that no event constituting a change or a termination of the authority of any person to act on behalf of the Grantor or department hereunder has occurred.  The Trustee shall have no duty to act in the absence of such orders, requests, and instructions from the Grantor and/or the department, except as provided for herein.

Section 15.  Notice of nonpayment  The Trustee shall notify the Grantor and the department, by certified mail, or other trackable delivery service, within 10 days following the expiration of the 30‑days period after the anniversary of the establishment of the Trust, if no payment is received from the Grantor during that period.  After the pay‑in period is completed, the Trustee shall not be required to send a notice of nonpayment.

Section 16.  Amendment of Agreement.  This Agreement may be amended by an instrument in writing executed by the Grantor, the Trustee, and the department, or by the Trustee and the department if the Grantor ceases to exist.

Section 17.  Irrevocability and termination  Subject to the right of the parties to amend this Agreement as provided in Section 16, this Trust shall be irrevocable and shall continue until terminated at the written agreement of the Grantor, the Trustee and the department, or by the Trustee and the department, if the Grantor ceases to exist.  Upon termination of the Trust, all remaining trust property, less final trust administration expenses, shall be delivered to the Grantor.

Section 18.  Immunity and indemnification  The Trustee shall not incur personal liability of any nature in connection with any act or omission, made in good faith, in the administration of this Trust, or in carrying out any directions by the Grantor or the department issued in accordance with this Agreement.  The Trustee shall be indemnified and saved harmless by the Grantor or from the Trust, or both, from and against any personal liability to which the Trustee may be subjected by reason of any act or conduct in its official capacity, including all expenses reasonably incurred in its defense in the event the Grantor fails to provide such defense.

Section 19.  Choice of law  This Agreement shall be administered, construed, and enforced according to the laws of the State of Colorado.

Section 20.  Interpretation  As used in this Agreement, words in the singular include the plural and words in the plural include the singular.  The descriptive headings for each section of this Agreement shall not affect the interpretation or the legal efficacy of this Agreement.
 
In witness whereof the parties have caused this Agreement to be executed by their respective officers duly authorized and their corporate seals to be hereunto affixed and attested as of the date first above written:  The parties below certify that the wording of this Agreement is identical to the wording specified in these regulations were constituted on the date first above written. 

The following is an example of the certification of acknowledgment which must accompany the trust agreement for a trust fund as specified in these regulations.

State of _________________________________  	 	       [County of                                      ]

On this [date], before me personally came [owner or operator] to me known, who, being by me duly sworn, did depose and say that she/he resides at [address], that she/he is [title] of [corporation], the corporation described in and which executed the above instrument; that she/he knows the seal of said corporation; that the seal affixed to such instrument is such corporate seal; that it was so affixed by order of the board of directors of said corporation, and that she/he signed her/his name thereto by like order.

[Signature of notary public]

Exhibit A

The following have been designated to give instruction to the Trustee:

[Name and title of designated person]	_________________________________

[Signature]					_________________________________

[Name and title of designated person]	_________________________________

[Signature]					_________________________________

Schedule A

Facility name: 	__________________________________________________

Facility address:	__________________________________________________

			__________________________________________________

Facility phone number:	________________________________________________

Facility email address: 	________________________________________________

Current closure cost estimate:		______________________________

Current post-closure cost estimate:	______________________________

Current corrective action cost estimate (if applicable): ____________________

Schedule B

Financial Institution Information

Name and address of financial institution where Trust is located: 

Name:		________________________________________

Address:		________________________________________

		________________________________________

Contact/Representative name:	 _______________________________________      

Contact phone number:		________________________________________ 

Contact email:			________________________________________

Account Information

Trust account number:	_________________________________

Initial funding amount:	_________________________________

II.	Irrevocable Standby Letter of Credit.

A letter of credit, specified in these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Irrevocable Standby Letter of Credit

Director
Colorado Department of Public Health and Environment
Hazardous Materials and Waste Management Division
4300 Cherry Creek Drive South
Denver, Colorado  80246-1530

Dear Sir or Madam:

We hereby establish our irrevocable standby letter of credit no.              in your favor, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [in words] U.S. Dollars $          , available upon presentation of:

(1)  Your sight draft bearing reference to this letter of credit no.         , and

(2)  Your signed statement reading as follows:  "I certify that the amount of the draft is payable pursuant to regulations issued under authority of the Colorado Solid Wastes Disposal Sites and Facilities Act as amended."

This letter of credit is effective as of [date] and shall expire on [date at least 1 year later], but such expiration date shall be automatically extended for a period of [at least 1 year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail, or other trackable delivery service, that we have decided not to extend this letter of credit beyond the current expiration date.  In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft, for 120 days after the date of receipt by both you and [owner's or operator's name], as shown on the signed return receipts.

Whenever this letter of credit is drawn on under and in compliance with the terms of this letter of credit, we shall duly honor such draft upon presentation to us, and we shall deposit the specified amount of the draft directly into the mechanism established by the State of Colorado to directly receive monies.

We certify that the wording of this letter of credit is identical to the wording specified as such regulations were constituted on the date shown immediately below.

[Signature(s) and title(s) of official(s) of issuing institution]

Signature: ________________________________________

Printed: ___________________________________________

Title: _____________________________________________

Date: _____________________________________________

This letter of credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published by the International Chamber of Commerce," or "the Uniform Commercial Code"].

III.	Surety Bond

A surety bond guaranteeing payment, as specified in these regulations, must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Surety Bond

Date bond executed: 	 
Effective date: 	 
Principal:[legal name and business address of owner or operator] 	 

Type of organization: [insert "individual", "joint venture", "partnership", or "corporation"]	 

State of incorporation: 	 
Surety(ies):[name(s) and business address(es)] 	 

 
Name, address, and closure and/or post‑closure, corrective action amount(s) for each facility guaranteed by this bond: [Indicate closure and/or post‑closure and/or corrective action amount separately] 	 

	 
 
Total penal sum of bond:  $	 
Surety's bond number: 	 

Know all persons by these presents, that we, the principal and surety(ies) hereto are firmly bound to the Colorado Department of Public Health and Environment, Hazardous Materials and Waste Management Division (the “department”) in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the surety(ies) are corporations acting as co‑sureties, we, the sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or action against any or all of us, and for all other purposes each surety binds itself, jointly and severally with the principal, for the payment of such sum only as is set forth opposite the name of such surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas said principal is required, under the Colorado Solid Wastes Disposal Sites and Facilities Act, to have a certificate of designation in order to own or operate each solid waste management facility identified above, and

Whereas said principal is required to provide financial assurance for closure, or closure and post‑closure care, as a condition of the certificate of designation, and 

Whereas said principal is required to provide financial assurance for any corrective action required at solid waste disposal sites and facilities.

Now, therefore, the conditions of the obligation are such that if the principal shall faithfully, before the beginning of final closure of each facility identified above, provide funding directly to the department in the amount(s) identified above for the facility, 

Or, if the principal shall fund in such amount(s) within 15 days after an order to begin closure is issued by the department or a U.S. District court or other court of competent jurisdiction,

Or, if the principal shall provide alternate financial assurance, as specified in these regulations and obtain the department’s written approval of such assurance, within 90 days after the date notice of cancellation is received by both the principal and the department from the surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.

The surety(ies) shall become liable on this bond obligation only when the principal has failed to fulfill the conditions described above.  Upon notification by the department that the principal has failed to perform as guaranteed by this bond, the surety(ies) shall place funds in the amount guaranteed for the facility(ies) as directed by the department.

The liability of the surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the surety(ies) hereunder exceed the amount of said penal sum.

The surety(ies) may cancel the bond by sending notice of cancellation by certified mail, or other trackable delivery service, to the principal and to the department, provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the principal and the department, as evidenced by the return receipts.

The principal may terminate this bond by sending written notice to the surety(ies), provided, however, that no such notice shall become effective until the surety(ies) receive(s) written authorization for termination of the bond by the department. 

[The following paragraph is an optional rider that may be included but is not required:]

The principal and surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure, post‑closure and/or corrective action amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the department.

In witness whereof, the principal and surety(ies) have executed this surety bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the principal and surety(ies) and that the wording of this surety bond is identical to the wording specified in the applicable regulations were constituted on the date this bond was executed.

Principal ____________________                                                                        
[Signature(s)] _______________________________________________
[Name(s) and Titles] _____________________________________________

			    _____________________________________________

[Corporate seal]

Corporate Surety(ies) _____________________________________________

[Name and address] _____________________________________________

State of incorporation:  _____________________________________________
                       
Liability limit: $   _____________________________________________
                           
[Signature(s)] _____________________________________________
[Name(s) and title(s)] _____________________________________________

[Corporate seal]

[For every co‑surety, provide signature(s), Corporate seal, and other information in the same manner as for surety above.]

Bond premium: $                                 

IV.  Performance Bond 

A surety bond guaranteeing performance of closure and/or post‑closure care, or corrective action as specified, must be worded as follows, except that the instructions in brackets are to be replaced with the relevant information and the brackets deleted.

Performance Bond
Date bond executed: 	 
Effective date: 	 
Principal:[legal name and business address of owner or operator] 	 

 
Type of organization: [insert "individual”, "joint venture", "Partnership", or "corporation"]	 
State of incorporation: 	 

Surety(ies):[Name(s) and business address(es)] 	 

Name, address, and closure and/or post‑closure corrective action amount(s) for each facility guaranteed by this bond (indicate closure and post‑closure amounts separately]: 	 

Total penal sum of bond: $	 

Surety's bond number: 	 

Know all persons by these presents, that we, the principal and surety(ies) hereto are firmly bound to the Colorado Department of Public Health and Environment (the “department”) , in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators successors, and assigns jointly and severally; provide that, where the surety(ies) are corporations acting as co‑sureties, we, the sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each surety binds itself, jointly and severally with the principal, for the payment of such sum only as is set forth opposite the name of such surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas said principal is required, under the Colorado Solid Wastes Disposal Sites and Facilities Act as amended, to have a certificate of designation in order to own or operate each solid waste disposal site and facility identified above; and 

Whereas said principal is required to provide financial assurance for closure, or closure and post‑closure care, as a condition of the certificate of designation; and

Whereas said principal is required to provide financial assurance for any corrective action required at Solid Waste Disposal Sites and Facilities.

Now, therefore, the conditions of this obligation are such that if the principal shall faithfully perform closure, whenever required to do so, of each facility for which this bond guarantees closure, in accordance with the closure plan and other requirements of the certificate of designation as such plan and certificate of designation may be amended, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended. 

And, if the principal shall faithfully perform post‑closure care of each facility for which this bond guarantees post‑closure care, in accordance with the post‑closure plan and other requirements of the certificate of designation, as such plan and certificate of designation may be amended, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended.

Or, if the principal shall provide alternate financial assurance as specified in these regulations, and obtain the department’s written approval of such assurance, within 90 days after the date notice of cancellation is received by both the principal and the department from the surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.

The surety(ies) shall become liable on this bond obligation only when the principal has failed to fulfill the conditions described above. 

Upon notification by the department that the principal has been found in violation of the closure requirements of these regulations, for a facility for which this bond guarantees performances of closure, the surety(ies) shall either perform closure in accordance with the closure plan and other  certificate of designation requirements or deposit the closure amount guaranteed for the facility as directed by the department.

Upon notification by the department that the principal has failed to provide alternate financial assurance as specified in these regulations, and obtain written approval of such assurance from the department during the 90 days following receipt by both the principal and the department of a notice of cancellation of the bond, the surety(ies) shall deposit funds in the amount guaranteed for the facility(ies) as directed by the department.

The surety(ies) hereby waive(s) notification of amendments to closure plans, permits, applicable laws, statutes, rules, and regulations and agrees that no such amendment shall in any way alleviate its (their) obligation on this bond.

The liability of the surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the surety(ies) hereunder exceed the amount of said penal sum.

The surety(ies) may cancel the bond by sending notice of cancellation by certified mail, or other trackable delivery service, to the owner or operator and to the department provided, however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the principal and the department, as evidenced by the return receipts.

The principal may terminate this bond by sending written notice to the surety(ies), provided, however, that no such notice shall become effective until the surety(ies) receive(s) written authorization for termination of the bond by the department.

[The following paragraph is an optional rider that may be included but is not required.]

Principal and surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure and/or post‑closure and corrective action amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of the department.

In witness whereof, the principal and surety(ies) have executed this performance bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the principal and surety(ies) and that the wording of this surety bond is identical to the wording specified in the applicable regulations.

Principal ____________________

[Signature(s)] _______________________________________________
[Name(s) and Title(s)] ________________________________________

[Corporate seal]

Corporate Surety(ies)
[Name and address]
State of incorporation:                        
Liability limit: $                             
[Signature(s)]
[Name(s) and title(s)]

[Corporate seal] 

[For every co‑surety, provide signature(s), Corporate seal, and other information in the same manner as for surety above.]

Bond premium: $                             

V.	Insurance

(1)	The standard insurance industry certificate of insurance form (ACORD form), as prescribed by the Colorado Insurance Commission, shall be used to evidence closure and/or post‑closure care and/or corrective action coverage. The following information is to be included in the certificate of insurance: 

(A)  Name, address, email and telephone number of agency; and the underwriter

(B)  Name of facility being covered (if list is too long additional pages may be attached). 

(C)  Indication of type of coverage (closure, post-closure and/or corrective action).

(D)  Amount of coverage (closure, post-closure and/or corrective action).

(E)  A statement of certification, in the comment section, worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted: 

"This certificate certifies that the policy to which this certificate applies, provides [insert and/or closure and/or post‑closure care or corrective action coverage] in connection with the insured's obligation to demonstrate financial responsibility under Section 4.6.5 of the regulations pertaining to Solid Waste Disposal Sites and Facilities 6 CCR 1007-2, as amended.

(F)  Authorized company representatives' signature

(2)	Cancellation of this policy, whether by the insurer or the insured, will be effective only upon written notice and only after the expiration of sixty (60) days after a written notice of cancellation is received by the department.

VI.	Certificate of Deposit 

COLLATERAL ASSIGNMENT OF CERTIFICATE OF DEPOSIT

Instructions:	The Colorado Department of Public Health and Environment requires an original signed copy with Italic text replaced. 
Bank and Assignor may also require original signed copies. 

(Note: No individual certificate of deposit or the total of all deposits of the assignor at any individual   savings institution should exceed $250,000 or the maximum insurable amount by F.D.I.C). 

PART I 
(To: be completed by Assignor) 

The undersigned assignor (the “Assignor”), as responsible operator or owner for (Name and Address of Facility) (“the Facility”), does hereby assign, transfer to, and pledge to the Director of the Hazardous Materials and Waste Management Division of the Colorado Department of Public Health and Environment (“the department”), right, title, and interest in and to the Certificate of Deposit issued by or carried with______________________, and its successors or assigns, with an office located at (Address and Telephone Number of Bank or Savings Institution) and identified as Certificate of Deposit #_______________ (“CD”) including its principal amount and any interest that will accrue or already has accrued on the CD (“Assignment”).  This Assignment is binding on Assignor, its/his/her/their heirs, devises, personal representatives, successors, and assigns.  

PURPOSE

This Assignment is made as, and shall constitute, collateral security for closure, post-closure, and corrective action costs associated with the Facility in accordance with section 30-20-104.5, C.R.S. and 6 CCR 1007-2, § 4.0.  Pursuant to 6 CCR 1007-2, § 4.5, the aforesaid costs shall be updated every five (5) years, adjusted annually to account for inflation or deflation by using the implicit price deflator for the gross domestic product or its successor as published by the U.S. Department of Commerce (“Cost Estimate”), or as requirements change at the Facility.

The principal amount of the CD shall be equal or greater to the current Cost Estimate.  If the Cost Estimate increases to an amount greater than the principal amount of the CD, the owner or operator, during the seven (7) day grace period after the maturity date of the CD (“Grace Period’), shall contribute additional funding to the CD so that the principal amount of the CD is at least equal to the Cost Estimate. In the alternative, the Facility may implement another financial assurance mechanism as set forth in 6 CCR 1007-2, § 4.6.1(D) to satisfy the disparity between the principal amount of the CD and the Cost Estimate.  The owner and operator shall provide confirmation that the principal amount of the CD or the alternative financial mechanism covers the Cost Estimate to the department within ten (10) days of the aforesaid contribution or establishment of other financial assurance mechanism.

During every Grace Period, the owner or operator of the Facility shall increase the principal amount of the CD to account for the inflationary adjustment as determined pursuant to 6 CCR 1007-2, § 4.5 and shall provide written notice of such increase to the department within ten (10) days thereafter.

If the Cost Estimate decreases during the operating life of the Facility or during post-closure, the principal amount of the CD may be reduced to the amount of the Cost Estimate following the department’s consultation with the local governing authority and written approval by the department.

Upon request by the department, the Assignor shall provide within ten (10) days to the department a complete copy of the most recent account statement of the CD, which, at a minimum, shows its principal amount and accrued interest.  The Assignor also irrevocably consents and authorizes ______________________________ to release any information regarding the CD and a recent account statement to the department if the department should contact this bank directly.

DURATION OF ASSIGNMENT

This Assignment shall be for a period from the date hereof until the department declares this Assignment to be terminated by written notice to _____________________________ and Assignor.  Consequently, the CD shall be automatically renewed for successive new terms identical to the CD’s original term unless and until ______________________________ receives written notice of termination of the Assignment.  Assignor hereby agrees to not cancel or otherwise act on the CD without the department’s written approval and that Assignor is liable for any fees or penalties associated with any payment of the CD to the department.

CDPHE’S RIGHT TO DRAW UPON CERTIFICATE OF DEPOSIT

Following a determination by the department that the owner or operator has failed to perform final closure or post-closure or corrective action in accordance with the closure or post-closure or corrective action plan and other certificate of designation requirements, if applicable, the department may draw on the CD without further notice to or the consent of Assignor.

The undersigned hereby constitutes and appoints the department as Power of Attorney of the undersigned to demand, collect, and receive all amounts that may become due under the terms of this Assignment, and to endorse the CD for payment or negotiation and to endorse any commercial paper given in payment of the CD.  

PRESENTATION OF CERTIFICATE OF DEPOSIT

The undersigned represents and warrants that a receipt for the CD is contemporaneously being delivered to the department with the execution of this Assignment; that the CD is to remain assigned to the department until authorized for release pursuant to 6 CCR 1007-2, § 4.4.6.13; that the CD is genuine and is in all respects what it purports to be; that the undersigned is the owner thereof free and clear of all liens and encumbrances of any nature whatsoever; and that the undersigned has full power, right, and authority to execute and deliver this Assignment. 

NOTICES

All notices required under this Assignment shall be sent to:

	Financial Assurance Program Manager
	Colorado Department of Public Health and Environment
	Mail Code: HMWMD-SWP-B2
	4300 Cherry Creek Drive South
	Denver, Colorado 80246-1530

The undersigned further represents and warrants that any assignments of this CD made while the CD is pledged to the department shall be subordinate to this Assignment. 

ASSIGNOR:  (Name of the Owner or Operator of the Facility)

___________________________________	_______________________
Name (Print)				          		Title

___________________________________	_______________________
Signature						Date

PART II 
(To be completed by bank or savings institution)

SIGNATURE GUARANTEE AND UNDERTAKING BY THE FINANCIAL INSTITUTION

The signature of the Assignor appearing on PART I of this document was made in the presence of the undersigned officer of ______________________________ and such signature is herewith guaranteed by ______________________________. 

This institution is an association/bank doing business in this state whose accounts are insured by the Federal Deposit Insurance Corporation.  The above Assignment carries with it the right in and to the insurance of this account provided by the Federal Deposit Insurance Corporation.

______________________________ hereby certifies that the CD identified on page one (1) has a principal amount of $____________; that the signature of the Assignor above is comparable to signatures on file with ______________________________; and that ______________________________  has no knowledge of any other lien, encumbrance, right, hold, claim to, or obligation on the assigned CD.

The CD is issued for a period of ____ year(s), beginning on _____________, _____ and shall be automatically renewable for a like term and at Bank’s standard interest rate in effect as of the applicable renewal date for a CD of such term and principal amount, with interest automatically rolling into the principal on each maturity date.  In accordance with 6 CCR 1007-2, § 4.6.10(H), ______________________________  shall provide a thirty (30) day written notice of maturity of the CD to the Assignor and will make a good faith effort to provide same notice to the department.  ______________________________ may elect at any time not to renew the CD as of a particular maturity date, subject to the requirement that, at least sixty (60) days before the applicable maturity date,

 ______________________________ shall notify the Assignor and the department by certified mail or other trackable delivery service, of such decision.  Such notice shall be effective upon receipt.  Upon maturity of the CD following ______________________________’s notice of non-renewal, ______________________________ shall disburse all funds as directed by the department.

______________________________  understands and agrees that the procedures governing the forfeiture of this CD are specified in 6 CCR 1007-2, § 4.6.10(J), and that, upon ______________________________ ’s receipt of written notice from the department that the Facility has not complied with its requisite final closure or post-closure or corrective action plan, ______________________________  will forward to the department within ten (10) days the principal amount of the CD plus any accrued interest, less any early withdrawal penalty, without further notice to the Assignor. 

On this date, the maximum penalty for early withdrawal of this Certificate of Deposit is: 
$_________________________________.  Any penalty shall be deducted from interest accrued, and if to the extent that such amount is insufficient, shall be deducted from the principal of the CD.

______________________________ herein states that so long as this agreement remains in effect, it has no other interests in this CD other than its sole responsibility to act as the agent for the purpose of holding the CD for the department’s exclusive use until otherwise approved by the department in writing, and agrees not to act on the CD except as otherwise provided in this agreement or pursuant to written approval by the department. _____________________________ agrees that any claim or lien, which may result from this Assignment, or which it may acquire in the future against the Assignor, will be subordinate and junior to the department’s interest in the CD. 

______________________________ agrees that except as otherwise provided in this agreement, no modification will be made to the terms and conditions of the CD which would affect the interest of the department under this assignment, without first notifying and obtaining written approval from the department.  Written notice of any proposed modification or change in the terms or conditions of this CD shall be provided to the Financial Assurance Program Manager at the address listed in PART I above. 

______________________________ understands that this Certificate of Deposit is being pledged to the department by the Assignor as financial assurance under 6 CCR 1007-2, § 4.0.  ______________________________ has retained a copy of this Assignment and has properly documented this Assignment in the appropriate records of this institution. 

_________________________________________________________________
Name of Financial Institution

____________________________________	___________________________	
Name 					           	Title

____________________________________	_______________________
Signature						Date

Accepted By:
Colorado Department of Public Health and Environment

__________________________________	__________________
Signature				 		Date
Division Director
Hazardous Materials and Waste Management Division