Financial Assurance for Solid Waste Management Facilities

North Carolina General Statute 130A-295.2 requires owners and operators of solid waste management facilities to demonstrate that the owner/operator will have the funds necessary to properly close the facility, provide post-closure care and maintenance, implement any corrective action plans, and fund potential assessment and corrective action costs for the permitted solid waste management facility. The requirements for financial assurance for solid waste management facilities can be found in N.C.G.S. 130A-295.2 and 15A NCAC 13B Section .1800. 15A NCAC 13B .1805 references the allowable mechanisms required to demonstrate financial assurance that are set forth in 40 CFR 258.74 (July 1, 2010 edition). The Division of Waste Management - Solid Waste Section is responsible for administering and enforcing these requirements.

Owners and operators of solid waste management facilities that are required to establish financial assurance can find references to applicable general statutes, rules, and federal regulations linked below:

Solid Waste Management Facilities Requiring Financial Assurance

As of July 1, 2020, the requirements in 15A NCAC 13B regarding financial assurance have been amended and moved to a new Section .1800. Under Section .1800, the solid waste management facilities that are required to establish financial assurance include, but are not limited to, the following:

Compost Facilities (large Type III; small and large Type IV),
Construction and Demolition Landfills that accepted waste after June 30, 2008,
Incinerators,
Industrial Solid Waste Landfills,
Medical Facilities,
Mixed Waste Processors,
Municipal Solid Waste Landfills that accepted waste after October 9, 1993,
Private Scrap Tire Collection Sites,
Private Transfer Stations,
Tire Monofills - landfills for the exclusive disposal of scrap tires, and
Treatment and Processing Facilities.

.1800 Rule Mechanisms for Private Companies

.1800 Rule Mechanisms for Local Governments and Municipalities

Potential Assessment and Corrective Action (PACA)

Potential Assessment and Corrective Action (PACA) Law:

NCGS 130A 295.2:

(h) To meet the financial assurance requirements of this section, the owner or operator of a sanitary landfill, other than a sanitary landfill for the disposal of construction and demolition debris waste, shall establish financial assurance sufficient to cover a minimum of two million dollars ($2,000,000) in costs for potential assessment and corrective action at the facility. The Department may require financial assurance in a higher amount and may increase the amount of financial assurance required of a permit holder at any time based upon the types of waste disposed in the landfill, the projected amount of waste to be disposed in the landfill, the location of the landfill, potential receptors of releases from the landfill, and inflation. The financial assurance requirements of this subsection are in addition to the other financial responsibility requirements set out in this section.

(h1) To meet the financial assurance requirements of this section, the owner or operator of a sanitary landfill for the disposal of construction and demolition debris waste shall establish financial assurance sufficient to cover a minimum of one million dollars ($1,000,000) in costs for potential assessment and corrective action at the facility. The financial assurance requirements of this subsection are in addition to the other financial responsibility requirements set out in this section.

15A NCAC 13B .1801:

(i) Financial assurance for potential assessment and corrective action shall be established in accordance with G.S. 130A-295.2(h) and (h1), and shall be increased for inflation annually, concurrently with cost estimates for closure, post-closure care, and corrective action programs in accordance with Rules .1802(b)(1), .1803(b)(1), and .1804(b)(1) of this Section, respectively.

History of Statute Changes for Potential Assessment and Corrective Action:

In 2007, all sanitary landfills (Municipal Solid Waste Landfill (MSWLF), Construction Demolition Landfill (CDLF), and Industrial Landfill (INDUS)) were required to at a minimum, establish the environmental liability of potential assessment and corrective action (PACA) in the amount of $3,000,000. This PACA requirement was in addition to the environmental liabilities of closure, post-closure, and current corrective action. The PACA amount would be required to increase for inflation annually as stated in NCGS 130A-295.2 (h). (2007-550, s. 5(a)) Session Law 2007-550, Senate Bill 1492

In 2011, the environmental liability amount for PACA of a minimum of $3,000,000 was reduced to a minimum of $2,000,000 for sanitary landfills. However, inflation was still required for this amount. (2011-262, s. 1) Session Law 2011-262, House Bill 209

In 2014, sanitary landfills (MSWLF and INDUS) were still required to establish an environmental liability of a minimum of $2,000,000 for PACA. However, CDLFs could reduce their PACA amount to a minimum of $1,000,000. Inflation is still required for these amounts. (2014-120, s. 27.) Session Law 2014-120, Senate Bill 734

Potential Assessment and Corrective Action Annual Costs:

Standalone MSWLF and INDUS shall use published inflation multipliers since 2011. Additionally, standalone CDLFs shall use inflation multipliers since 2014. Should an entity have a permitted MSWLF unit and a CDLF unit within the same facility boundary, then the legal entity would choose the higher $2,000,000 minimum.

The following costs reflect annual PACA costs for updating facility mechanisms.

Year	Inflation Multiplier	Sanitary Landfill - Operational MSWL, INDUS, and combination of (MSWLF and CDLF within same facility boundary)
2011		$2,000,000.00
2012	1.020	$2,040,000.00
2013	1.019	$2,078,760.00
2014	1.015	$2,109,941.00
2015	1.014	$2,139,480.58
2016	1.010	$2,160,875.39
2017	1.013	$2,188,966.77
2018	1.018	$2,228,368.17
2019	1.022	$2,277,392.27
2020	1.017	$2,316,107.94
2021	1.012	$2,343,901.23

Year	Inflation Multiplier	Sanitary Landfill - Operational CDLFs
2014		$1,000,000.00
2015	1.014	$1,014,000.00
2016	1.010	$1,024,140.00
2017	1.013	$1,037,453.82
2018	1.018	$1,056,127.99
2019	1.022	$1,079,362.80
2020	1.017	$1,097,711.97
2021	1.012	$1,110,884.51

Sanitary Landfills operating after the established Statute requirements would begin with the minimum PACA amount upon issuance of a Permit To Operate, and annually increase for inflation.

Questions can be directed to Sarah Rice, Environmental Program Consultant at 919-707-8287 or Sarah.Rice@ncdenr.gov . Additionally, Sherri Stanley, Permitting Branch Head at 919-707-8235 or Sherri.Stanley@ncdenr.gov .

Recurring Solid Waste Mangement Facility Requirements

As of June 1, 2020, annual and quinquennial financial assurance requirements for solid waste management facilities have been revised. Below are those requirements:

Annual Requirements:

Financial Assurance Cost:

Annually, the owner and operator of a solid waste management facility shall increase for inflation the current costs for closure, post-closure, current corrective action program, and potential assessment and corrective action. In liu of an increase for inflation, the owner and operator shall provide an itemized cost estimate for Division approval no less than 180 calendar days prior to the anniversary of the date of the financial assurance mechanism was established.

Revised Mechanism Due Dates:

Owners and operators using the corporate financial test or corporate guarantee as set forth in Rule .1805(e) of this Section shall submit the adjusted financial assurance mechanism to the Division no more than 90 calendar days following the close of the corporate entity's fiscal year that is stated in the mechanism.
Owners and operators using a financial assurance mechanism set forth in Rule .1805(e) of this Section other than the local government financial test, capital reserve fund, corporate financial test, or corporate guarantee shall submit the adjusted financial assurance mechanism to the Division no less than 60 calendar days before the anniversary of the initial date that the financial assurance mechanism was established.
Owners and operators using the local government financial test or the capital reserve fund as set forth in Rule .1805(e) of this Section shall submit the adjusted financial assurance mechanism to the Division prior to December 31, after the end of the local government's fiscal year.

Inflation Multiplier:

The owner and operator of a solid waste management facility is required to adjust a cost estimate or the amount of financial assurance for inflation. The adjustment for inflation shall be made by using the US Department of Commerce, Bureau of Economic Analysis Gross Domestic Product, implicit price deflator. The implicit price deflator that shall be used to adjust for inflation shall be published on the Division's website at http://go.ncdenr.gov/fa by January 30 of each year. Financial assurance mechanisms that renew in January shall use the previous year's implicit price deflator.

Request for Reduction in Cost:

The owner and operator may request to reduce the closure, post-closure or corrective action program cost estimates and the amount of financial assurance if the cost estimate exceeds the maximum cost of closure, post-closure, or corrective action program at any time during the active life of the facility by submitting a cost estimate and a written justification for the reduction to the Division for approval no less than 180 calendar days prior to the anniversary of the date the financial assurance mechanism was established. No reduction of the cost or the amount of financial assurance shall be allowed without written approval from the Division.

Sanitary Landfill Requirement:

Owners and operators of sanitary landfills permitted by the Division in accordance with Rule .0207 of this Subchapter shall annually submit the following information to the Division no less than 180 calendar days prior to the renewal date of the financial assurance mechanisms for the facility:

(1) current description and size in acreage of any active portion of the facility that has closed since the previous financial assurance mechanism renewal; and
(2) a description of the acreage proposed to remain active and proposed to be closed in the year following the upcoming financial assurance mechanism renewal.

Quinquennial Requirements:

Current Corrective Action Requirement:

Once every five years, the owner and operator shall update the cost estimate of the corrective action program and submit the following information to the Division in writing:
           (A) a description of the remedial actions selected pursuant to Rule.0545(e) or Rule .1636 of this Subchapter that have not been completed;
           (B) the number of years remaining for each remedial action until the remedial action is complete; and
          (C) the updated cost estimate for the remaining remedial actions.

Annual Inflation Multiplier

Effective January 1, 2021, the inflation factor price deflator/multiplier = 1.012
Effective January 1, 2020, the inflation factor price deflator/multiplier = 1.017
Effective April 1, 2019, the inflation factor price deflator/multiplier = 1.022 *
Effective January 1, 2018, the inflation factor price deflator/multiplier = 1.018
Effective January 1, 2017, the inflation factor price deflator/multiplier = 1.013
Effective January 1, 2016, the inflation factor price deflator/multiplier = 1.010
Effective January 1, 2015, the inflation factor price deflator/multiplier = 1.014
Effective January 1, 2014, the inflation factor price deflator/multiplier = 1.015

Financial Assurance Mechanisms must contain, when applicable, inflation-adjusted cost estimates for closure, post-closure care, corrective action, and potential assessment and corrective action (PACA), or a new cost estimate. If an inflation-adjusted cost estimate is to be used, it must be based on U.S. Department of Commerce, Bureau of Economic Analysis Gross Domestic Product implicit price deflator.

(*) Due to the federal shutdown, the annual factor for January 1, 2019 was not released until April 1, 2019. Facilities that had adjustment deadlines between January 2019 and March 2019 are required to use the inflation factor price deflator/multiplier of 1.018.