S.C. Code Regs. 61-107.19. Solid Waste. Management: Solid Waste Landfills and Structural Fill

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South Carolina Code of Regulations › Chapter 61 DEPARTMENT OF ENVIRONMENTAL SERVICES › S.C. Code Regs. 61-107.19

This text was captured on Aug 14, 2026. It is a snapshot, not a live feed, so check the official code before relying on it.

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Part I. General Requirements.

A. Applicability.

1. This regulation establishes minimum standards for the site selection, design, operation, and closure of all solid waste landfills and structural fill areas. Disposal of waste under the purview of this regulation is based on the waste’s chemical/physical properties and is not dependent upon the source of generation with the exception of municipal solid waste that shall be disposed in Class Three landfills. This regulation is divided into the following parts:

a. Part I outlines the general criteria that applies to one or more Parts of the regulation, e.g., the applicability for the regulation, waste characterization requirements for determining the type of landfill needed, definitions for the purposes of this regulation;

b. Part II outlines the Permit-by-rule requirements for structural fill activity using a limited waste stream;

c. Part III outlines the General Permitting requirements for Class One Landfills - using land-clearing debris, and yard trash to fill low areas, including permitted mining sites, for an aesthetic benefit or property enhancement;

d. Part IV outlines the requirements for Class Two Landfills - all landfills for the disposal of waste as outlined in Appendix I of this regulation, and similar waste, and wastes that test, pursuant to Section C of this Part, less than ten (10) times the maximum contaminant level (MCL) as published in R.61-58, State Primary Drinking Water Regulation current at the time of the permit application. When a waste not listed in Appendix I is approved by the Department for disposal, the landfill’s permit will be modified to include the acceptability of the approved waste; and,

e. Part V outlines the requirements for Class Three Landfills that accept municipal solid waste, industrial solid waste, sewage sludge, nonhazardous municipal solid waste incinerator ash and other nonhazardous wastes.

aste not listed in Appendix I is approved by the Department for disposal, the landfill’s permit will be modified to include the acceptability of the approved waste; and,

2. This regulation replaces and simultaneously repeals Regulations: 61-107.11 Solid Waste Management: Construction, Demolition, and Land-clearing Debris Landfills; 61-107.13 Solid Waste Management: Municipal Solid Waste Incinerator Ash Landfills; 61-107.16 Solid Waste Management: Industrial Solid Waste Landfills; and 61-107.258 Solid Waste Management: Municipal Solid Waste Landfills. The Department will automatically convert as an administrative modification all existing landfill permits to the appropriate Part as outlined in this regulation.

3. A separate permit shall be required for each landfill even though there may be one or more different types of landfills located in different areas on the same site.

4. This regulation applies to all new and existing solid waste landfills and to all structural fill activities. All new solid waste landfills shall be in compliance with all requirements of this regulation prior to receipt of waste.

5. This regulation becomes effective upon publication as final in the State Register .

6. Existing permitted solid waste landfills shall comply with the following:

a. Existing permitted landfills operating on the effective date of this regulation are not subject to the location criteria outlined herein, but shall be subject to all other provisions of this regulation;

5. This regulation becomes effective upon publication as final in the State Register .

6. Existing permitted solid waste landfills shall comply with the following:

b. Within 180 days of the effective date of this regulation, existing permitted landfills that are not in compliance with required standards, shall submit to the Department a plan to bring the landfill into compliance with requirements of this regulation; and,

c. All landfills operating on the effective date of this regulation shall be in compliance with the requirements of this regulation within 18 months of the effective date of this regulation, unless additional time is allowed pursuant to requirements of this regulation.

7. Landfills for the disposal only of trees, stumps, wood chips, and yard trash when generation and disposal of such waste occurs on properties under the same ownership or control are exempt from the requirements of this regulation. Also, land-clearing debris generated from agricultural or silvicultural operations generated and disposed on site are not subject to the requirements of this regulation.

8. Open dumping is prohibited.

9. Use of Design Document, Plans, and Specifications.

a. The owner/operator of a solid waste landfill shall maintain copies of all Department approved plans and specifications for the landfill at a location readily accessible by landfill personnel and representatives of the Department during regular business hours; and,

this regulation.

8. Open dumping is prohibited.

9. Use of Design Document, Plans, and Specifications.

b. All landfill operations shall be in accordance with this regulation and with all Department approved plans and specifications for the facility. Failure to operate in accordance with this regulation and/or the approved plans and permit may result in enforcement action by the Department.

10. All activities conducted under the purview of this regulation shall adhere to all Federal and State rules and regulations, and all local zoning, land use, and other applicable ordinances and laws;

B. Definitions for the Purposes of this Regulation.

1. “Active life” means the period of operation beginning with the initial receipt of solid waste and ending at completion of closure activities in accordance with this regulation.

2. “Active portion” means that part of a facility that has received or is receiving wastes and that has not been closed in accordance with this regulation.

3. “Administratively complete” means a determination by the Department that all elements of an application, as specified herein, have been received to include all required signatures and tender of the application fee, where required.

4. “Airport” means public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

5. “Applicant” means an individual, corporation, partnership, business association, or government entity that applies for the issuance, transfer, or modification of a permit under this regulation.

n fee, where required.

4. “Airport” means public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

6. “Aquifer” means a geological formation, group of formations, or portion of a formation, capable of yielding significant quantities of groundwater to wells or springs.

7. “Areas susceptible to mass movement” means those areas of influence (i.e., areas characterized as having an active or substantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the landfill, because of natural or man-induced events, results in the downslope transport of soil and rock material by means of gravitational influence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluction, block sliding, and rock fall.

8. “Ash” means the solid residue from the incineration of solid wastes.

9. “Beneficial fill” means filling to surrounding grade, low areas or depressions in the surface of the earth to include permitted mining sites for an aesthetic benefit.

10. “Bird hazard” means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.

11. “Bulk PCB Waste” means waste derived from manufactured products containing PCBs in a non-liquid state, at any concentration where the concentration at the time of designation for disposal was ≥50 ppm PCBs. PCB bulk product waste does not include PCBs or PCB Items regulated for disposal under 40CFR761, the Toxic Substances Control Act (TSCA), Sections 761.60(a) through (c), Sec. 761.61, Sec. 761.63, or Sec. 761.64. PCB bulk product waste includes, but is not limited to:

g PCBs in a non-liquid state, at any concentration where the concentration at the time of designation for disposal was ≥50 ppm PCBs. PCB bulk product waste does not include PCBs or PCB Items regulated for disposal under 40CFR761, the Toxic Substances Control Act (TSCA), Sections 761.60(a) through (c), Sec. 761.61, Sec. 761.63, or Sec. 761.64. PCB bulk product waste includes, but is not limited to:

(a) Non-liquid bulk wastes or debris from the demolition of buildings and other man-made structures manufactured, coated, or serviced with PCBs. PCB bulk product waste does not include debris from the demolition of buildings or other man-made structures that is contaminated by spills from regulated PCBs which have not been disposed of, decontaminated, or otherwise cleaned up in accordance with TSCA requirements, Sec. 761.61.

(b) PCB-containing wastes from the shredding of automobiles, household appliances, or industrial appliances.

(c) Plastics (such as plastic insulation from wire or cable; radio, television and computer casings; vehicle parts; or furniture laminates); preformed or molded rubber parts and components; applied dried paints, varnishes, waxes or other similar coatings or sealants; caulking; adhesives; paper; Galbestos; sound deadening or other types of insulation; and felt or fabric products such as gaskets.

(d) Fluorescent light ballasts containing PCBs in the potting material.

12. “Closure” means the discontinuance of operation by ceasing to accept, treat, store, or dispose of solid waste in a manner which minimizes the need for further maintenance and protects human health and the environment.

13. “Commercial solid waste” means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding residential and industrial wastes.

ntinuance of operation by ceasing to accept, treat, store, or dispose of solid waste in a manner which minimizes the need for further maintenance and protects human health and the environment.

14. “Construction” means any physical modification to the site at which a potential or proposed solid waste management facility is to be located including, but not limited to, site preparation.

15. “Contingency plan” means a document acceptable to the Department setting out an organized, planned, and coordinated course of action to be followed at or by the facility in case of a fire, explosion, or other incident that could threaten human health and safety or the environment.

16. “Cover” means soil or other suitable material, or both, acceptable to the Department that is used to cover compacted solid waste in a land disposal site.

17. “Department” means the South Carolina Department of Environmental Services.

18. “Disclosure statement” means a sworn statement or affirmation, the form and content of which shall be determined by the department and as required by SC Code Section 44-96-300.

19. “Displacement” means the relative movement of any two (2) sides of a fault measured in any direction.

20. “Disposal” means the discharge, deposition, injection, dumping, spilling, or placing of any solid waste into or on any land or water, so that the substance or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwater.

21. “Existing landfill” means any landfill that is permitted to receive solid waste as of the effective date of this regulation.

rge, deposition, injection, dumping, spilling, or placing of any solid waste into or on any land or water, so that the substance or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwater.

21. “Existing landfill” means any landfill that is permitted to receive solid waste as of the effective date of this regulation.

22. “Expand” or “Expansion” means, for the purposes of this regulation, any increase in the permitted capacity of a solid waste disposal facility, or any increase in the total volume at a solid waste disposal facility.

23. “Facility” means all contiguous land, structures, other appurtenances and improvements on the land used for treating, storing, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal operational units, including, but not limited to, one or more landfills, surface impoundments, or combination thereof.

24. “Fault” means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side.

25. “Financial assurance mechanism” means a mechanism designed to demonstrate that sufficient funds will be available to meet specific environmental protection needs of solid waste management facilities. Available financial responsibility mechanisms include, but are not limited to insurance, trust funds, surety bonds, letters of credit, certificates of deposit, and financial tests as determined by the Department by regulation.

26. “Flood plain” means the lowland and relatively flat areas adjoining inland and coastal areas of the mainland and off-shore islands including, at a minimum, areas subject to a one percent or greater chance of flooding in any given year.

to insurance, trust funds, surety bonds, letters of credit, certificates of deposit, and financial tests as determined by the Department by regulation.

27. “100-year flood” means a flood that has a 1-percent or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.

28. “Footprint” means the outer most edges of the waste disposal area.

29. “Gas condensate” means the liquid generated as a result of gas recovery process(es) at the landfill.

30. “Generator” means any person, by site, whose action or process produces solid waste, or whose action first causes a solid waste to become subject to regulation.

31. “Groundwater” means water beneath the land surface in the saturated zone.

32. “Hazardous waste” has the meaning provided in Section 44-56-20 of the South Carolina Hazardous Waste Management Act.

33. “High water table” means the highest water elevations measured at the uppermost aquifer.

34. “Holocene” means the most recent epoch of the Quaternary period, extending from the end of the Pleistocene Epoch to the present.

35. “Household waste” means any solid waste (including garbage, trash, and sanitary waste in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreational areas).

36. “Industrial waste” means solid waste that results from industrial processes including, but not limited to, factories and treatment plants.

ding garbage, trash, and sanitary waste in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreational areas).

36. “Industrial waste” means solid waste that results from industrial processes including, but not limited to, factories and treatment plants.

37. “Karst terranes” means areas where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.

38. “Landfill” means a disposal facility or part of a facility where solid waste is placed in or on land, and which is not a land treatment facility, a surface impoundment, or an injection well.

39. “Land-clearing debris” means solid waste which is generated solely from land-clearing activities, but does not include solid waste from agricultural or silvicultural operations.

40. “Lateral expansion” means a horizontal expansion of the footprint of an existing landfill.

41. “Leachate” means the liquid that has percolated through or drained from solid waste or other man-emplaced materials and that contains soluble, partially soluble, or miscible components removed from such waste.

42. “Lead-based paint” means paint containing greater than 600 parts per million (ppm) total lead by weight, calculated as lead metal in the total nonvolatile content, i.e., >0.06%; or, when measured in situ with an X-ray Fluorescence Spectrum Analyzer (XRF), paint containing >0.7 mg/cm2.

terials and that contains soluble, partially soluble, or miscible components removed from such waste.

43. “Liquid waste” means any waste material that is determined to contain “free liquids” as defined by Method 9095B (Paint Filter Liquids Test), and as described in “Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods” (EPA Pub. No. SW-846, as amended by EPA final updates).

44. “Lithified earth material” means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock that formed by crystallization of magma or by induration of loose sediments. This term does not include man-made materials, such as fill, concrete, and asphalt, or unconsolidated earth materials, soil, or regolith lying at or near the earth’s surface.

45. “Local government” means a county, any municipality located wholly or partly within the county, and any other political subdivision located wholly or partly within the county when such political subdivision provides solid waste management services.

46. “Lower explosive limit” means the lowest percent by volume of a mixture of explosive gases in air that will propagate a flame at 25o C and atmospheric pressure.

47. “Maximum horizontal acceleration in lithified earth material” means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a 90% or greater probability that the acceleration will not be exceeded in 250 years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment.

48. “Modification” means changes to a solid waste landfill as follows:

ntal acceleration in lithified earth material” means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a 90% or greater probability that the acceleration will not be exceeded in 250 years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment.

48. “Modification” means changes to a solid waste landfill as follows:

a. “Minor modification” means a change that keeps the permit current with routine changes to the facility or its operations, or an administrative change; and,

b. “Major modification” means a change that substantially alters the facility or its operations, e.g., tonnage increase above 25%, any volumetric capacity increase, alternate designs that vary from the design prescribed in this regulation.

49. “Municipal solid waste” includes, but is not limited to, wastes that are durable goods, nondurable goods, containers and packaging, food scraps, and miscellaneous inorganic wastes from residential, commercial, institutional, and industrial sources including, but not limited to, appliances, automobile tires, newspapers, clothing, disposable tableware, office and classroom paper, wood pallets, and cafeteria wastes.

50. “Municipal solid waste incinerator” means any solid waste incinerator, publicly or privately owned, that receives household waste. Such incinerator may receive other types of solid waste such as commercial or industrial solid waste.

51. “On-site landfill” means landfills that accept only solid waste generated in the course of normal operations on property under the same ownership or control as the waste management facility.

52. “Open burning” means any fire or smoke-producing process which is not conducted in any boiler plant, furnace, high temperature processing unit, incinerator or flare, or in any other such equipment primarily designed for the combustion of fuel or waste material.

enerated in the course of normal operations on property under the same ownership or control as the waste management facility.

53. “Open dumping” means any unpermitted or unregistered solid waste disposal or land filling activity.

54. “Pay-in period” means the time frame allotted for making annual payments into a trust fund.

55. “Perennial stream” means a stream or reach of a stream that flows continuously throughout the year and whose upper surface generally stands lower than the water table in the region adjoining the stream.

56. “Permit” means the process by which the department can ensure cognizance of, as well as control over, the management of solid wastes.

57. “Permittee” means the person to whom the Department issued either a permit, an approval to operate under a General Permit, or a Permit-by-rule, pursuant to this regulation.

58. “Person” means an individual, corporation, company, association, partnership, unit of local government, state agency, federal agency, or other legal entity.

59. “Poor foundation conditions” means those areas where features exist which indicate that a natural or man-induced event may result in inadequate foundation support for the structural components of a landfill.

60. “Practical Quantitation Limit (PQL)” means the lowest concentration of an analyte that can be measured within specified limits of precision and accuracy during routine laboratory operating conditions.

61. “Putrescible wastes” means solid waste that contains organic matter capable of being decomposed by microorganisms and of such a character and proportion as to be capable of creating foul smelling odors and attracting or providing food for animals.

ration of an analyte that can be measured within specified limits of precision and accuracy during routine laboratory operating conditions.

62. “Qualified professional” means a qualified South Carolina registered professional geologist or qualified South Carolina registered professional engineer. Under Part IV Section E and Part V Subpart E the qualified professional shall have sufficient training and experience in groundwater hydrology and related fields, including groundwater monitoring, contaminant fate and transport, and corrective-action.

63. “Recharge area” for a particular aquifer is defined as areas where water enters the aquifer through downward migration. Principal examples include: outcrop areas of a particular aquifer where the potentiometric head within the unit decreases with depth; and, in the subsurface, where the potentiometric head relationship and leakage factors across any confining unit allow for downward flow into other aquifer systems.

64. “Region” means a group of counties in South Carolina that is planning to or has prepared, approved, and submitted a regional Solid Waste Management Plan to the Department pursuant to S.C. Code Section 44-96-80.

65. “Regulated hazardous waste” means a solid waste that is a hazardous waste, as defined in R.61-79.261.3, Hazardous Waste Management Regulations, that is not excluded from regulation as a hazardous waste under R.61-79.261.4(b), or was not generated by a conditionally exempt small quantity generator as defined in R.61-79.261.5.

66. “Regulatory threshold” means promulgated levels that can not be equaled or exceeded.

67. “Representative sample” means a sample that statistically represents the population.

nagement Regulations, that is not excluded from regulation as a hazardous waste under R.61-79.261.4(b), or was not generated by a conditionally exempt small quantity generator as defined in R.61-79.261.5.

66. “Regulatory threshold” means promulgated levels that can not be equaled or exceeded.

67. “Representative sample” means a sample that statistically represents the population.

68. “Responsible party” means:

a. Any officer, corporation director, or senior management official of a corporation, partnership, or business association that is an applicant;

b. A management employee of a corporation, partnership, or business association that is an applicant who has overall responsibility for operations and financial management of the facility under consideration;

c. An individual, officer, corporation director, senior management official of a corporation, partnership, or business association under contract to the applicant to operate the facility under consideration; or,

d. An individual, corporation, partnership, or business association that holds, directly or indirectly, at least five percent (5%) equity or debt interest in the applicant. If any holder of five percent or more of the equity or debt of the applicant is not a natural person, the term means any officer, corporation director, or senior management official of the equity or debt holder who is empowered to make discretionary decisions with respect to the operation and financial management of the facility under consideration.

69. “Run-off” means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

70. “Run-on” means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.

71. “Saturated zone” means that part of the earth’s crust in which all voids are filled with water.

al management of the facility under consideration.

69. “Run-off” means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

70. “Run-on” means any rainwater, leachate, or other liquid that drains over land onto any part of a facility.

71. “Saturated zone” means that part of the earth’s crust in which all voids are filled with water.

72. “Seismic impact zone” means an area with a 10% or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth’s gravitational pull (g), will exceed 0.10g in 250 years.

73. “Sludge” means any solid, semi-solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.

74. “Small business” means a commercial retail service, industry entity, or nonprofit corporation, including its affiliates, that:

a. Is, if a commercial retail service or industry service, independently owned and operated; and,

b. Employs fewer than one hundred (100) full-time employees or has gross annual sales or program service revenues of less than five million dollars.

75. “Sole source aquifer” is defined as specified in the Federal Safe Drinking Water Act.

luding its affiliates, that:

a. Is, if a commercial retail service or industry service, independently owned and operated; and,

b. Employs fewer than one hundred (100) full-time employees or has gross annual sales or program service revenues of less than five million dollars.

75. “Sole source aquifer” is defined as specified in the Federal Safe Drinking Water Act.

76. “Solid waste” means any garbage, refuse, or sludge from a waste treatment facility, water supply plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations and from community activities. This term does not include solid or dissolved material in domestic sewage, recovered materials, or solid or dissolved materials in irrigation return flows or industrial discharges that are point sources subject to NPDES permits under the Federal Water Pollution Control Act, as amended, or the Pollution Control Act of South Carolina, as amended, or source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended. Also excluded from this definition are application of fertilizer and animal manure during normal agricultural operations or refuse as defined and regulated pursuant to the South Carolina Mining Act, including processed mineral waste, which will not have a significant adverse impact on the environment.

77. “Special Wastes” means nonresidential or commercial solid wastes, other than regulated hazardous wastes, that are either difficult or dangerous to handle and require unusual management at Class Three landfills, including, but not limited to, those wastes contained in S.C. Code Section 44-96-390.(A).

78. “Special Wastes Analysis and Implementation Plan” means the procedures used to identify and manage special wastes at Class Three landfills, pursuant to SC Code Section 44-96-390.

dous wastes, that are either difficult or dangerous to handle and require unusual management at Class Three landfills, including, but not limited to, those wastes contained in S.C. Code Section 44-96-390.(A).

78. “Special Wastes Analysis and Implementation Plan” means the procedures used to identify and manage special wastes at Class Three landfills, pursuant to SC Code Section 44-96-390.

79. “State” means the State of South Carolina.

80. “Structural components” means liners, leachate collection systems, final covers, run-on/run-off systems, and any other component used in the construction and operation of the landfill that is necessary for protection of human health and the environment.

81. “Structural fill” means landfilling for future beneficial use utilizing land-clearing debris, hardened concrete, hardened/cured asphalt, bricks, blocks, and other materials specified by the department by regulation, compacted and landfilled in a manner acceptable to the department, consistent with applicable engineering and construction standards and carried out as a part of normal activities associated with construction, demolition, and land-clearing operations; however, the materials utilized must not have been contaminated by hazardous constituents, petroleum products, or painted with lead-based paint. Structural fill may not provide a sound structural base for building purposes.

82. “Structural integrity” means the ability of a landfill to withstand physical forces exerted upon designed components, appurtenances, and containment structures (e.g., liners, dikes) of the landfill.

t not have been contaminated by hazardous constituents, petroleum products, or painted with lead-based paint. Structural fill may not provide a sound structural base for building purposes.

83. “Surface water” means lakes, bays, sounds, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Atlantic Ocean within territorial limits, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, public or private. (This does not include drainage ditches, sedimentation ponds and other operational features on the site.)

84. “Unstable area” means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terranes.

85. “Uppermost aquifer” means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility’s property boundary.

86. “Vector” means a carrier that is capable of transmitting a pathogen from one organism to another including, but not limited to, flies and other insects, rodents, birds, and vermin.

87. “Vertical expansion” means an expansion of an existing solid waste landfill above previously permitted elevations for the purposes of gaining additional capacity.

88. “Washout” means the carrying away of solid waste by waters of the one-hundred year base flood.

89. “Wetlands” means those areas that are defined in 40 Code of Federal Regulations (CFR) Section 232.2(r) or State law.

“Vertical expansion” means an expansion of an existing solid waste landfill above previously permitted elevations for the purposes of gaining additional capacity.

88. “Washout” means the carrying away of solid waste by waters of the one-hundred year base flood.

89. “Wetlands” means those areas that are defined in 40 Code of Federal Regulations (CFR) Section 232.2(r) or State law.

90. “Yard trash” means solid waste consisting solely of vegetative matter resulting from landscaping maintenance.

C. Waste Characterization.

1. Waste Characterization Report.

a. Determination of the proper landfill class for disposal of a waste stream is based on the chemical and physical properties of the waste and not on the source of generation of the waste. To determine the class of landfill required for proper disposal of a waste stream, the permittee shall submit to the Department a waste characterization report. The waste characterization report shall consist of a comprehensive analytical evaluation of the chemical and physical nature of each waste stream. Hazardous wastes as defined in R.61-79, Hazardous Waste Management Regulations shall not be disposed of in the landfills under the purview of this regulation. The wastes acceptable for disposal in a Class One landfill, and waste items listed in Appendix I are exempt from the waste characterization process outlined in this regulation. Class Three landfills shall adhere to their approved Special Waste Analysis and Implementation Plan (SWAIP), pursuant to S.C. Code Section 44-96-390 which shall be deemed to be in compliance with this Section.

b. The toxicity characteristic leaching procedure (TCLP) (USEPA method 1311) shall be used to obtain all extracts for the purpose of characterizing a waste stream proposed for disposal in a solid waste landfill.

to their approved Special Waste Analysis and Implementation Plan (SWAIP), pursuant to S.C. Code Section 44-96-390 which shall be deemed to be in compliance with this Section.

c. The analytical results of the TCLP shall be compared to the MCLs in South Carolina R.61-58 State Primary Drinking Water Regulation to determine the appropriate class landfill in which the waste stream may be disposed. If no MCL exists for a parameter, then those drinking water risk-based concentrations recognized by EPA Region IV shall be used to determine the appropriate class landfill for the waste. For those parameters where no MCL or Region IV number exists, the Department, using input from the permittee, will develop an appropriate number for determining the landfill class for disposal of that waste stream.

d. Unless otherwise exempted in this regulation, all wastes shall be characterized in accordance with the following schedule:

(1) A minimum of every three years using certified knowledge of the process by which the waste stream was generated;

(2) At a minimum of every six years using analytical test data from the TCLP;

(3) According to a Department approved alternate schedule based on the variability or non-variability noted in previous sampling events or other factors that affect the predictability of waste characteristics;

(4) When the process or raw materials used in the process that generates the waste changes significantly enough to alter the chemical makeup or chemical ratios of the waste stream; and,

g to a Department approved alternate schedule based on the variability or non-variability noted in previous sampling events or other factors that affect the predictability of waste characteristics;

(4) When the process or raw materials used in the process that generates the waste changes significantly enough to alter the chemical makeup or chemical ratios of the waste stream; and,

(5) When a new waste stream is proposed for disposal.

e. Waste streams not listed in Appendix I, that demonstrate properties similar to the waste listed on Appendix I, may be exempted from testing as determined by the Department on a case-by-case basis. Requests for an exemption from testing, along with technical rationale for the exemption, shall be submitted to the Department in writing.

f. The Department will provide current forms and guidance documents needed for the successful completion of the waste characterization process. All analytical results from the characterization process shall be submitted to the Department on these forms or in a format approved by the Department.

2. Waste Testing and Waste Stream Determination.

a. The permittee shall submit to the Department a comprehensive determination of the chemical and physical nature of each waste stream to be landfilled in accordance with the following sampling and analytical requirements:

(1) To ensure that representative samples are obtained, the sampler shall develop a sampling plan and employ all reasonable measures, such as sampling different sources of solid waste at different times, or conducting random sampling of a representative pile of the waste generated from different sources at different times. All samples of waste shall be collected using procedures as described in EPA Publication SW-846.

presentative samples are obtained, the sampler shall develop a sampling plan and employ all reasonable measures, such as sampling different sources of solid waste at different times, or conducting random sampling of a representative pile of the waste generated from different sources at different times. All samples of waste shall be collected using procedures as described in EPA Publication SW-846.

(2) All analytical testing required by this regulation shall be performed by a laboratory certified by the Department for the appropriate methodologies, to both properly prepare and analyze for the required parameters. The current guidelines for applicable regulatory thresholds, practical quantitation limits, and required quality assurance data shall be obtained from the Department prior to the start of the characterization project. Analytical results shall be submitted to the Department within 60 days of the sample collection date.

(3) Mixing of individual wastes to be disposed of prior to testing is acceptable only if:

(a) The individual wastes are mixed prior to discharge in the normal production process of the generator or the individual wastes are generated by identical processes and identical raw materials; or,

(b) The mixing of individual non-hazardous wastes results in a waste in which leaching characteristics are no greater than the leaching characteristics of one or more of the individual wastes; and,

i. A demonstration is submitted to the Department for review and approval that details how a reduction in leaching occurs due to some factor other than dilution. The demonstration shall include, at a minimum:

n-hazardous wastes results in a waste in which leaching characteristics are no greater than the leaching characteristics of one or more of the individual wastes; and,

aa. The concentration, determined in accordance with the requirements of this Section, for each parameter which undergoes a reduction in concentration. Concentrations of parameters shall be determined for each individual waste in the mixture and for each parameter as a result of the mixture;

bb. A listing and the ratio, by weight and volume, of the individual wastes which comprise the mixture;

cc. Calculations using the concentration and weight data required in paragraphs aa. and bb. above, which demonstrate quantitatively that the reduction in leaching characteristics is not solely due to dilution; and,

dd. An identification and explanation of the chemical reactions, including chemical equations, which cause the reduction.

ii. The individual non-hazardous wastes are mixed in the same ratios and in the same manner in which they will be mixed prior to disposal.

(4) For the purpose of obtaining an extract, which will be analyzed for any volatile organic compounds, a zero head space extraction apparatus, as specified in the TCLP, shall be used.

ations, which cause the reduction.

ii. The individual non-hazardous wastes are mixed in the same ratios and in the same manner in which they will be mixed prior to disposal.

(4) For the purpose of obtaining an extract, which will be analyzed for any volatile organic compounds, a zero head space extraction apparatus, as specified in the TCLP, shall be used.

(5) Practical Quantitation Limits (PQLs) for the analytical methods shall be one order of magnitude below the required regulatory threshold for the particular landfill class desired for disposal. Slight deviations in minimum PQL may be granted, on a case-by-case basis, with proper application and technical justification to the Department.

b. For the initial characterization of solid waste to be disposed of in a solid waste landfill, a minimum of two (2) representative samples of the waste shall be collected and tested in accordance with the TCLP. TCLP testing of additional samples of the solid waste may be required by the Department, based on a high degree of variability in the concentration of a parameter at or near the maximum allowable concentration for a particular landfill class. The Department may allow, with prior approval, the testing for selected constituents based on the generators knowledge of the process.

c. The permittee shall notify and obtain approval from the Department prior to making any physical or chemical changes to the waste stream being disposed of in a solid waste landfill.

(1) Significant changes in the chemical or physical nature of the waste stream may require disposal of the waste stream in a different class of landfill.

rators knowledge of the process.

c. The permittee shall notify and obtain approval from the Department prior to making any physical or chemical changes to the waste stream being disposed of in a solid waste landfill.

(1) Significant changes in the chemical or physical nature of the waste stream may require disposal of the waste stream in a different class of landfill.

(2) Significant changes to the chemical or physical nature of the waste stream may require modification of the environmental monitoring program.

d. Any person seeking to utilize a testing or analytical method other than the TCLP method described in Section C.1.b. above may request authorization to do so. To be successful, the applicant shall demonstrate to the satisfaction of the Department that the proposed method is equal to or superior to the TCLP in terms of its sensitivity, accuracy, and precision (i.e., reproducibility). The request shall include, at a minimum:

(1) A full description of the proposed method, including all procedural steps and equipment used in the method;

(2) Description of the types of wastes or waste matrices for which the proposed method may be used;

(3) Comparative results obtained from using the proposed method with those obtained from using the TCLP;

(4) An assessment of any factors, which may interfere with, or limit the use of, the proposed method;

(5) A description of the quality control procedures necessary to ensure the sensitivity, accuracy, and precision of the proposed method; and,

(3) Comparative results obtained from using the proposed method with those obtained from using the TCLP;

(4) An assessment of any factors, which may interfere with, or limit the use of, the proposed method;

(5) A description of the quality control procedures necessary to ensure the sensitivity, accuracy, and precision of the proposed method; and,

(6) Any other information on the proposed method, which the Department may reasonably request to evaluate the proposed method.

e. The outcome of an alternate testing procedure as outlined in Section C.2.d. above may result in revision of the landfill class limits as defined in Part I, Section A.1. of this regulation to ensure equivalent protection of human health and the environment.

f. Solid waste streams that contain chemicals or chemical properties potentially harmful to human health and the environment, for which TCLP or other approved testing procedures as outlined in Section C.2.d. above is not sufficient, shall be classified on a case-by-case basis by the Department. The permit applicant may be required to perform alternate testing procedures as necessary to determine the potential adverse effects to human health and the environment.

g. A sampling and analysis plan for performing the activities outlined in Section C.2.a.-f. above shall be submitted to the Department for review and approval prior to sampling for waste characterization purposes.

nt. The permit applicant may be required to perform alternate testing procedures as necessary to determine the potential adverse effects to human health and the environment.

h. If the waste characterization test results indicate that a landfill reclassification is necessary based on exceedance of the landfill classification level outlined in Part IV A.1., the Department may require additional sampling and testing to confirm or reject such indication. If exceedance of the landfill classification level outlined in Part IV A.1 is confirmed and the facility intends to continue to accept the waste stream in question, the Department will require the permittee to submit a permit application for appropriate modifications to the landfill. The required modifications shall insure that the facility meets the requirements of the new landfill classification.

3. Waste Characterization Report for Class Two Landfills.

a. Class Two landfills shall, prior to permit issuance, submit a waste characterization report that contains at a minimum, the following:

(1) A listing of each solid waste proposed for disposal in the facility;

(2) The solid waste sampling plan used to ensure that accurate and representative samples are collected in accordance with Section C.2.a. above;

(3) A detailed description of any mixing to be proposed as described in Section C.2.a. above, and any available information that is required by that section;

(4) All laboratory results and quality assurance/quality control documentation that fully characterizes each waste; and,

urate and representative samples are collected in accordance with Section C.2.a. above;

(3) A detailed description of any mixing to be proposed as described in Section C.2.a. above, and any available information that is required by that section;

(4) All laboratory results and quality assurance/quality control documentation that fully characterizes each waste; and,

(5) The name, location, and contact person of each generator of solid waste to be disposed of at the facility.

b. Class Two landfills that accept ONLY those wastes specifically listed in Appendix I are exempt from the waste characterization report requirements.

c. Class Three landfills shall adhere to their approved Special Waste Analysis and Implementation Plan (SWAIP), pursuant to S.C. Code Section 44-96-390.

4. Compliance with the Department approved SWAIP will satisfy requirements of this section for Class Three landfills.

D. Permit Application Process.

1. Determination of Need and Consistency.

a. Prior to submittal of a permit application to the Department for a new or expanded Class Two or Class Three Landfill, the applicant shall provide documentation of property ownership (e.g., tax map or deed) or proof of property control (e.g., contract) and request the following determinations by the Department:

(1) That there is a need for the proposed landfill or landfill expansion pursuant to Regulation 61-107.17 and that the Department has determined the maximum yearly disposal rate pursuant to Regulation 61-107.17;

(2) That the proposed landfill or landfill expansion is consistent with the State and county/region solid waste management plans pursuant to S.C. Section 44-96-290(F);

(3) That the proposed landfill or landfill expansion is consistent with local zoning, land use, and any other applicable ordinances pursuant to S.C. Code Section 44-96-290(F);

Regulation 61-107.17;

(2) That the proposed landfill or landfill expansion is consistent with the State and county/region solid waste management plans pursuant to S.C. Section 44-96-290(F);

(3) That the proposed landfill or landfill expansion is consistent with local zoning, land use, and any other applicable ordinances pursuant to S.C. Code Section 44-96-290(F);

(4) That the proposed landfill or landfill expansion meets the buffer requirements set forth in Part IV, B.1.a. of this Regulation for Class Two landfills and Part V, Subpart B.258.18.a. of this Regulation for class Three landfills;

b. Where, prior to the effective date of this regulation, the Department has made determinations required under Part I.D.1.a. of this regulation, such determinations shall remain applicable and become the agency’s final determination under Part I.D.1, subject to the appeal provision in Part I.D.1.c and the subsequent public notice and application process.

c. A Department decision involving a determination listed herein, may be appealed by an affected person with standing pursuant to applicable law, including S.C. Code Title 48, Chapter 6; and Title 1, Chapter 23.

2. Public Notification and Participation.

a. Notice of Intent to File a Permit Application.

(1) Within 15 days of notification from the Department that all requests for need and consistency determinations as outlined in Section D.1.a. above have been submitted to the Department for a new or expanding Class Two or Class Three Landfill, the applicant shall publish Notice of Intent to File a Permit Application in a newspaper of general circulation in the area of the proposed landfill project. The notice shall be published in the legal section of the paper for three consecutive days. This section does not apply to major permit modifications that are not expansions of an existing landfill.

xpanding Class Two or Class Three Landfill, the applicant shall publish Notice of Intent to File a Permit Application in a newspaper of general circulation in the area of the proposed landfill project. The notice shall be published in the legal section of the paper for three consecutive days. This section does not apply to major permit modifications that are not expansions of an existing landfill.

(2) The notice shall contain at least the following:

(a) Name and address of the applicant;

(b) The location of the proposed landfill or landfill expansion to include the county, roads and crossroads;

(d) The proposed size of the landfill or landfill expansion, i.e., footprint acreage;

(e) An explanation of the type(s) of waste that will be accepted;

(f) A statement that a request has been submitted to the Department for a determination that there is a need for the proposed landfill or landfill expansion pursuant to Regulation 61-107.17 and for a determination of the maximum yearly disposal rate pursuant to Regulation 61-107.17;

(g) A statement that a request has been submitted to the Department for a determination that the proposed landfill or landfill expansion is consistent with the State and county/region solid waste management plans pursuant to S.C. Section 44-96-290(F);

(h) A statement that a request has been submitted to the Department for a determination that the proposed landfill or landfill expansion is consistent with local zoning, land use, and any other applicable ordinances pursuant to S.C. Code Section 44-96-290(F);

sion is consistent with the State and county/region solid waste management plans pursuant to S.C. Section 44-96-290(F);

(i) A statement that a request has been submitted to the Department for a determination that the proposed landfill or landfill expansion meets the buffer requirements set forth in Part IV, B.1.a. of this Regulation for Class Two landfills and Part V, Subpart B.258.18.a. of this Regulation for Class Three landfills;

(j) Department locations (Central Office and appropriate Regional Office) where a copy of these documents can be viewed during normal working hours; and,

(k) The Department’s address and contact name for submittal of inquiries and placement of name on the Department’s mailing list for future decisions.

(3) No permit application may be accepted by the Department for filing unless accompanied by documentation from the newspaper that publication has been made.

(4) No later than the first date of publication in the newspaper, the applicant shall mail a copy of the Notice of Intent to File a Permit Application by certified mail, return receipt requested, to all adjoining landowners of the proposed landfill or landfill expansion.

b. Notice of Draft Determinations of Need and Consistency Under Section D.1.a. Above.

s been made.

b. Notice of Draft Determinations of Need and Consistency Under Section D.1.a. Above.

(1) For Class Two and Class Three landfills, the Department will publish a notice when the draft determinations are ready for review for all new or expanded landfills. This notice will be published in a newspaper of general circulation in the area of the proposed landfill and sent to affected persons who have asked to be notified. The notice will list locations where a copy of the draft determinations can be reviewed. The public will have a 30-day period to review the draft determinations and submit comments to the Department, pursuant to the Administrative Procedures Act, SC Code Section 1-23-10 et seq.

(2) Public Hearings for Draft Determinations.

(a) The Department will conduct a public hearing upon receipt of requests in writing by ten (10) persons or by a governmental subdivision or agency or by an association having not less than ten members.

(b) A request for a public hearing must be mailed (postmarked) to the Department during the 30 day comment period and shall be based on technical reasons relating to siting, design, or operation of the landfill. The Department will send a notice acknowledging receipt of a request for a public hearing to the applicant and to the person(s) requesting a hearing within 15 days following receipt of the request. The Department will publish a notice of the time, date, and location of the hearing.

day comment period and shall be based on technical reasons relating to siting, design, or operation of the landfill. The Department will send a notice acknowledging receipt of a request for a public hearing to the applicant and to the person(s) requesting a hearing within 15 days following receipt of the request. The Department will publish a notice of the time, date, and location of the hearing.

(3) Notice of Department Determinations. After close of the public comment period on the draft determination and the public hearing, if held, the Department will issue a Department Decision. Notice of the Department Decision will be sent by certified mail, return receipt requested, to the applicant. Notice of the Department’s decision will be sent by regular mail, unless certified mail is requested, to affected persons who have asked to be notified, to all persons who commented in writing to the Department, and to all persons who attended the public hearing, if held. However, if the Department determines that members of the same group or organization have submitted comments or a petition, the Department may only notify all group leaders and petition organizers by certified mail, return receipt requested. The Department will ask these leaders and organizers to notify members of their groups or any concerned citizens who signed the petitions. The Department will also publish notice of the Department Decision in a newspaper of general circulation in the area of the proposed activity. The Department’s notice will include instructions on how to request a final review conference and the time frame for filing such a request.

c. Notice of Filing Permit Application.

their groups or any concerned citizens who signed the petitions. The Department will also publish notice of the Department Decision in a newspaper of general circulation in the area of the proposed activity. The Department’s notice will include instructions on how to request a final review conference and the time frame for filing such a request.

c. Notice of Filing Permit Application.

(1) Notice of all applications submitted to the Department for the initial construction and major modifications of Class Two and Class Three landfills shall be published by the applicant once in a newspaper of general circulation in the area of the proposed landfill project. Notice for Class Two landfill application shall be published as provided in Part IV, Section H.3. Notice for new Class Three landfills that accept municipal solid waste shall be published as provided in S. C. Code Section 44-96-470 and Part V, Subpart H.3.a. of this regulation within 15 days of filing the permit application. Notice for all other new Class Three landfills shall be published as provided in Part V, Subpart H.3.b.

(2) All notices shall contain the following:

(a) Name and address of the applicant;

(b) The location of the proposed activity to include the county, roads and crossroads. (Class Three landfills shall provide a location map of the proposed site);

(d) A description of the proposed site or a description of the proposed major modification;

(e) An explanation of the type(s) of waste that will be accepted;

(f) Department locations (Central Office and appropriate Regional Office) where a copy of the permit application or draft permit, as appropriate, can be viewed during normal working hours;

(g) The Department’s address and contact name for submittal of comments and inquires;

(e) An explanation of the type(s) of waste that will be accepted;

(f) Department locations (Central Office and appropriate Regional Office) where a copy of the permit application or draft permit, as appropriate, can be viewed during normal working hours;

(g) The Department’s address and contact name for submittal of comments and inquires;

(h) The approximate tonnage/year expected for disposal at the landfill; and,

(i) The proposed life of the landfill.

(3) The Department will send a notice of receipt of the permit application by regular mail to all adjoining landowners of the proposed landfill.

d. Public notification requirements for Class One landfills are defined in Part III, Section B.4.

e. Notice of Draft Permit. For Class Two and Class Three landfills, the Department will publish a notice when the draft permit is ready for review for all new landfills and for major modifications as determined by the Department. This notice will be published in a newspaper of general circulation in the area of the proposed landfill and will be sent to affected persons who have asked to be notified. The notice will list locations where a copy of the draft permit can be reviewed. The public will have a 30-day period to review the draft permit and submit comments to the Department, pursuant to the Administrative Procedures Act, SC Code Section 1-23-10 et seq.

f. Public Hearings for Draft Permits.

(1) The Department will conduct a public hearing upon receipt of requests in writing by ten (10) persons or by a governmental subdivision or agency or by an association having not less than ten members.

raft permit and submit comments to the Department, pursuant to the Administrative Procedures Act, SC Code Section 1-23-10 et seq.

f. Public Hearings for Draft Permits.

(2) A request for a public hearing must be mailed (postmarked) to the Department during the 30 day comment period and shall be based on technical reasons relating to siting, design, or operation of the landfill. The Department will send a notice acknowledging receipt of a request for a public hearing to the applicant and to the person(s) requesting a hearing within 15 days following receipt of the request. The Department will publish a notice of the time, date, and location of the hearing.

g. Notice of Department Decision on the Permit. After close of the public comment period on the draft permit and the public hearing, if held, the Department will issue a Department Decision. Notice of the Department Decision will be sent by certified mail, return receipt requested, to the applicant. Notice of the Department’s decision will be sent by regular mail, unless certified mail is requested, to affected persons who have asked to be notified, to all persons who commented in writing to the Department, and to all persons who attended the public hearing, if held. However, if the Department determines that members of the same group or organization have submitted comments or a petition, the Department may only notify all group leaders and petition organizers by certified mail, return receipt requested. The Department will ask these leaders and organizers to notify members of their groups or any concerned citizens who signed the petitions. The Department will also publish notice of the Department Decision in a newspaper of general circulation in the area of the proposed activity

, the Department may only notify all group leaders and petition organizers by certified mail, return receipt requested. The Department will ask these leaders and organizers to notify members of their groups or any concerned citizens who signed the petitions. The Department will also publish notice of the Department Decision in a newspaper of general circulation in the area of the proposed activity. The Department’s notice will include instructions on how to request a final review conference and the time frame for filing such a request.

E. Financial Assurance Criteria. The requirements of this Section apply to all: Class One landfills, except landfills owned and operated by local government or a region comprised of local governments, State or Federal government; Class Two landfills, except landfills owned and operated by local government or a region comprised of local governments, State or Federal government; and, Class Three landfills, except landfills owned and operated by State or Federal government entities whose debts and liabilities are the debts and liabilities of the State or the United States.

1. Financial Assurance for Closure.

a. The permittee shall have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area of the landfill ever requiring a final cover at any time during the active life in accordance with the closure plan. The permittee shall submit a copy of the estimate to the Department for review and approval.

(1) The cost estimate shall equal the cost of closing the largest area of the landfill ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan.

(2) During the active life of the landfill, the permittee shall annually adjust the closure cost estimate for inflation.

he cost estimate shall equal the cost of closing the largest area of the landfill ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan.

(2) During the active life of the landfill, the permittee shall annually adjust the closure cost estimate for inflation.

(3) The permittee shall increase the closure cost estimate and the amount of financial assurance provided if changes to the closure plan or landfill conditions increase the maximum cost of closure at any time during the remaining active life.

(4) The permittee may reduce the closure cost estimate and the amount of financial assurance provided for proper closure if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the landfill. The permittee shall submit justification for the reduction of the closure cost estimate and the amount of financial assurance to the Department for review and approval.

b. The permittee of each landfill shall establish financial assurance for closure of the landfill as required by this regulation using an allowable mechanism. The permittee shall provide continuous coverage for closure until released from financial assurance requirements, pursuant to this regulation.

2. Financial Assurance for Post-closure Care.

a. The permittee shall have a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the landfill in compliance with the applicable post-closure plan. The post-closure cost estimate used to demonstrate financial assurance shall account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post-closure care period. The permittee shall submit a copy of the estimate to the Department for review and approval.

in compliance with the applicable post-closure plan. The post-closure cost estimate used to demonstrate financial assurance shall account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post-closure care period. The permittee shall submit a copy of the estimate to the Department for review and approval.

(1) The cost estimate for post-closure care shall be based on the most expensive costs of post-closure care during the post-closure care period.

(2) During the post-closure care period, the permittee shall annually adjust the post-closure cost estimate for inflation.

(3) The permittee shall increase the post-closure care cost estimate and the amount of financial assurance provided if changes in the post-closure plan or landfill conditions increase the maximum costs of post-closure care.

(4) The permittee may reduce the post-closure cost estimate and the amount of financial assurance provided if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period. The permittee shall submit justification for the reduction of the post-closure cost estimate and the amount of financial assurance to the Department for review and approval.

b. The permittee of each landfill shall establish financial assurance for the costs of post-closure care as required by this regulation using an allowable mechanism. The permittee shall provide continuous coverage for post-closure care until released from financial assurance requirements for post-closure care.

3. Financial Assurance for Corrective Action.

review and approval.

3. Financial Assurance for Corrective Action.

a. A permittee of a landfill required to undertake a corrective action, pursuant to this regulation, shall have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the corrective action plan. The corrective action cost estimate shall account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period. The permittee shall submit a copy of the estimate to the Department for review and approval.

(1) The permittee shall annually adjust the estimate for inflation until the corrective action program is completed, pursuant to this regulation.

(2) The permittee shall increase the corrective action cost estimate and the amount of financial assurance provided if changes in the corrective action program or landfill conditions increase the maximum costs of corrective action.

(3) The permittee may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided in Section E.3.b. below, if the cost estimate exceeds the maximum remaining costs of corrective action. The permittee shall submit justification for the reduction of the corrective action cost estimate and the amount of financial assurance to the Department for review and approval.

permittee may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided in Section E.3.b. below, if the cost estimate exceeds the maximum remaining costs of corrective action. The permittee shall submit justification for the reduction of the corrective action cost estimate and the amount of financial assurance to the Department for review and approval.

b. The permittee of each landfill required to undertake a corrective action program, pursuant to this regulation, shall establish financial assurance for the most recent corrective action program using an allowable mechanism. The permittee shall provide continuous coverage for corrective action until released from financial assurance requirements for corrective action in accordance with this regulation.

4. Allowable Mechanisms. The mechanisms used to demonstrate financial assurance under this section shall ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed. Owners/operators shall choose from the options outlined herein. Payments made into the standby trust fund by the provider of the financial assurance pursuant to the Department instruction shall be transferred to the Trustee and are referred to as the Fund, together with all earnings and profits thereon, less any payments or distributions made by the Trustee. An originally signed duplicate of the standby trust agreement shall be submitted to the Department with documentation of the selected mechanism(s).

a. Trust Fund.

(1) A permittee may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this regulation.

(a) The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.

f the selected mechanism(s).

a. Trust Fund.

(1) A permittee may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this regulation.

(a) The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a Federal or State agency.

(b) The text of the trust agreement shall be provided by the Department.

(c) The original trust agreement signed by the permittee and the trustee shall be submitted to the Department for review and approval. The trust agreement shall be accompanied by:

i. Schedule A. This information shall be in a format approved by the Department, updated within 60 days of each change in cost estimate, and include, at a minimum, the following about the facility:

(aa) Permit number, if available;

(bb) Name of the permittee;

(cc) Address of the facility;

(dd) Current closure cost estimate; and,

(ee) Current post-closure cost estimate, if appropriate.

ii. Schedule B. This information shall be in a format approved by the Department and include, at a minimum:

(aa) The amount of funds or property used to initially establish the trust fund; and,

(bb) The account number in which the funds are being held.

iii. A Certificate of Acknowledgment for Solid Waste Management Facility Trust Fund Agreement in a format approved by the Department to include, at a minimum, the:

(aa) Name of the trustee; and,

(bb) Name of the permittee.

; and,

(bb) The account number in which the funds are being held.

iii. A Certificate of Acknowledgment for Solid Waste Management Facility Trust Fund Agreement in a format approved by the Department to include, at a minimum, the:

(aa) Name of the trustee; and,

(bb) Name of the permittee.

(d) The trust fund shall be irrevocable and can not be changed or recalled without written agreements from the Department.

(2) Payments into the trust fund for closure and post-closure care shall be made annually by the permittee for five years or over the remaining life of the landfill, whichever is shorter. This period is referred to as the pay-in period. In the case of a trust fund for corrective action of known releases, the pay-in period shall consists of one-half (1⁄2 ) of the estimated length of the corrective action program.

(3) For a trust fund used to demonstrate financial assurance for closure and post-closure care, the first payment into the fund shall be at least equal to the current cost estimate for closure or post-closure care divided by the number of years in the pay-in period as defined in Section E.4.a.(2) above. The amount of subsequent payments shall be determined by the following formula:

where CE is the current cost estimate for closure or post-closure care (updated for inflation or other changes), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

ded by the number of years in the pay-in period as defined in Section E.4.a.(2) above. The amount of subsequent payments shall be determined by the following formula:

(4) For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund shall be at least equal to one-half of the current cost estimate for corrective action, except as provided in Section E.4.h., divided by the number of years in the corrective action pay-in period as defined in Section E.4.a.(2) above. The amount of subsequent payments shall be determined by the following formula:

where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and Y is the number of years remaining on the pay-in period.

(5) The initial payment into the trust fund shall be made before the initial receipt of waste in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected.

(6) If the permittee establishes a trust fund after having used one or more alternate mechanisms, the initial payment into the trust fund shall be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the applicable specifications.

later than 120 days after the corrective action remedy has been selected.

(7) The permittee, or other person authorized to conduct closure, post-closure care, or corrective action activities may request reimbursement from the trustee for these expenditures. Requests for reimbursement shall be granted by the trustee only if sufficient funds are remaining in the trust fund to cover the most recent Department-approved cost estimate for closure, post-closure care, or corrective action, and if justification and documentation of the cost is placed in the operating record. The permittee shall notify the Department that the documentation of the justification for reimbursement has been placed in the operating record and that reimbursement has been received.

(8) The trust fund account shall contain, at a minimum, the amount of funds needed to complete final closure of the facility at any given time during the life of the facility. An annual statement shall be provided to the Department at least 30 days prior to the anniversary date of establishment of the fund that confirms the value of the trust fund account to include all payments made into the account and all reimbursements paid from the account during the previous year.

(9) The trust fund may be terminated by the permittee only if the permittee substitutes alternate acceptable financial assurance or if he is no longer required to demonstrate financial responsibility in accordance with this regulation.

b. Surety Bond Guaranteeing Payment or Performance.

the account and all reimbursements paid from the account during the previous year.

b. Surety Bond Guaranteeing Payment or Performance.

(1) A permittee may demonstrate financial assurance for closure or post-closure care by obtaining a payment or performance surety bond which conforms to the requirements of this regulation. A permittee may demonstrate financial assurance for corrective action by obtaining a performance bond which conforms to the requirements of this regulation. The bond shall be effective before the initial receipt of waste in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with this regulation. The permittee shall submit a copy of the bond to the Department. The surety company issuing the bond shall, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury. The text of the surety bond shall be provided by the Department.

(2) In addition to the surety bond, the permittee shall establish a standby trust fund, to receive payments using a trustee that has the authority to act as a trustee and that is regulated and examined by a Federal or State agency. The text of the standby trust shall be provided by the Department.

(3) The following documents shall be submitted to the Department:

(a) The original surety bond signed by the Surety and the permittee; and,

trust fund, to receive payments using a trustee that has the authority to act as a trustee and that is regulated and examined by a Federal or State agency. The text of the standby trust shall be provided by the Department.

(3) The following documents shall be submitted to the Department:

(a) The original surety bond signed by the Surety and the permittee; and,

(b) The original standby trust agreement signed by the permittee and the trustee.

(4) The penal sum of the bond shall be in an amount at least equal to the current closure, post-closure care or corrective action cost estimate, whichever is applicable, except as provided in Section E.4.j.

(5) Under the terms of the bond, the surety shall become liable on the bond obligation when the permittee fails to perform as guaranteed by the bond.

(6) The permittee shall establish a standby trust fund. The standby trust fund shall meet the requirements for a trust fund as defined in Section E.4.a. except the requirements for initial payment and subsequent annual payments specified in Section E.4.a.(2) through (5) above.

(7) Payments made under the terms of the bond shall be deposited by the surety directly into the standby trust fund. Payments from the trust fund shall be approved by the trustee.

(8) Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the permittee and to the Department 120 days in advance of cancellation. If the surety cancels the bond, the permittee shall obtain alternate financial assurance as specified in this section.

(9) The permittee may cancel the bond only if alternate financial assurance is substituted as specified in this section or if the permittee is no longer required to demonstrate financial responsibility in accordance with this regulation.

c. Letter of Credit.

surety cancels the bond, the permittee shall obtain alternate financial assurance as specified in this section.

c. Letter of Credit.

(1) A permittee may satisfy the requirements of this section by obtaining an irrevocable standby letter of credit which conforms to the requirements of this regulation. The letter of credit shall be effective before the initial receipt of waste in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with this regulation. The issuing institution shall be an entity which has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a Federal or State agency. The text of the letter of credit shall be provided by the Department.

(2) The original letter of credit shall be submitted to the Department.

(3) The letter of credit shall be irrevocable and issued for a period of at least one (1) year in an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable, except as provided in Section E.4.a.. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the permittee and to the Department 120 days in advance of cancellation. If the letter of credit is canceled by the issuing institution, the permittee shall obtain alternate financial assurance.

the expiration date will be automatically extended for a period of at least one year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the permittee and to the Department 120 days in advance of cancellation. If the letter of credit is canceled by the issuing institution, the permittee shall obtain alternate financial assurance.

(4) The permittee may cancel the letter of credit only if alternate financial assurance is substituted as specified in this section or if the permittee is no longer required to demonstrate financial responsibility in accordance with this regulation.

d. Insurance.

(1) A permittee may demonstrate financial assurance for closure and post-closure care by obtaining insurance that conforms to the requirements of this regulation. The insurance shall be effective before the initial receipt of waste in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of this regulation. At a minimum, the insurer shall be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States. The permittee shall submit a copy of the insurance policy to the Department for review and approval. Once approved, the permittee shall submit a copy of the effective insurance policy including all endorsements and attachments to the Department.

er shall be licensed to transact the business of insurance, or eligible to provide insurance as an excess or surplus lines insurer, in one or more States. The permittee shall submit a copy of the insurance policy to the Department for review and approval. Once approved, the permittee shall submit a copy of the effective insurance policy including all endorsements and attachments to the Department.

(2) The closure or post-closure care insurance policy shall guarantee that funds will be available to close the landfill whenever final closure occurs or to provide post-closure care for the landfill whenever the post-closure care period begins, whichever is applicable. The policy shall also guarantee that once closure or post-closure care begins, the insurer shall be responsible for the paying out of funds to the permittee or other person authorized to conduct closure or post-closure care, up to an amount equal to the face amount of the policy.

(3) The insurance policy shall be issued for a face amount at least equal to the current cost estimate for closure or post-closure care, whichever is applicable, except as provided in the section that addresses the use of multiple financial mechanisms. The term “face amount” means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer shall not change the face amount, although the insurer’s future liability will be lowered by the amount of the payments.

(4) A permittee, or any other person authorized to conduct closure or post-closure care, may receive reimbursements for closure or post-closure expenditures, whichever is applicable. Requests for reimbursement shall be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of closure or post-closure care, and if justification and documentation of the cost is submitted to and approved by the Department.

closure or post-closure care, may receive reimbursements for closure or post-closure expenditures, whichever is applicable. Requests for reimbursement shall be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of closure or post-closure care, and if justification and documentation of the cost is submitted to and approved by the Department.

(5) Each policy shall contain a provision allowing assignment of the policy to a successor permittee. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonably refused.

(6) The insurance policy shall 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 shall, 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 cancel the policy by sending notice of cancellation by certified mail to the permittee and to the Department 120 days in advance of cancellation. If the insurer cancels the policy, the permittee shall obtain alternate financial assurance.

(7) For insurance policies providing coverage for post-closure care, the insurer shall annually increase the face amount of the policy beginning on the date that liability to make payments is initiated. Such increase shall be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85% of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

surer shall annually increase the face amount of the policy beginning on the date that liability to make payments is initiated. Such increase shall be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85% of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

(8) The permittee may cancel the insurance policy only if alternate acceptable financial assurance is substituted, or if the permittee is no longer required to demonstrate financial responsibility in accordance with this regulation.

e. Corporate Financial Test. A permittee that satisfies the requirements of this section may demonstrate financial assurance up to the amount specified below:

(1) Financial component.

(a) The permittee shall satisfy one of the following three conditions:

i. A current rating for its senior unsubordinated debt of AAA, AA, A, or BBB as issued by Standard and Poor’s or Aaa, Aa, A or Baa as issued by Moody’s; or,

ii. A ratio of less than 1.5 comparing total liabilities to net worth; or,

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

(b) The tangible net worth of the permittee shall be greater than:

i. 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 paragraph E.4.e.(1)(b)ii. below.

s $10 million, to total liabilities.

(b) The tangible net worth of the permittee shall be greater than:

ii. $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.

(c) The Permittee shall 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 as described herein.

(2) Record keeping and reporting requirements.

(a) The permittee shall place the following items into the facility’s operating record and submit a copy to the Department:

i. A letter signed by the permittee’s chief financial officer that:

(aa) Lists all the current cost estimates covered by a financial test, including, but not limited to, cost estimates required for municipal solid waste management facilities under 40 CFR Part 258, cost estimates required for UIC facilities under 40 CFR part 144, if applicable, cost estimates required for petroleum underground storage tank facilities under 40 CFR part 280, if applicable, cost estimates required for PCB storage facilities under 40 CFR part 761, if applicable, and cost estimates required for hazardous waste treatment, storage, and disposal facilities under 40 CFR parts

t 258, cost estimates required for UIC facilities under 40 CFR part 144, if applicable, cost estimates required for petroleum underground storage tank facilities under 40 CFR part 280, if applicable, cost estimates required for PCB storage facilities under 40 CFR part 761, if applicable, and cost estimates required for hazardous waste treatment, storage, and disposal facilities under 40 CFR parts 264 and 265, if applicable; and,

(bb) Provides evidence demonstrating that the firm meets the conditions outlined above for either the current rating for its senior unsubordinated debt, or compliance with the ratio comparing total liabilities to net worth, or the ratio comparing net income to total liabilities as outlined in Section E.4.e.(1)(a) above, and the tangible net worth requirements in Section E.4.e.(1)(b) above and assets as outlined in Section E.4.e.(1)(c) above.

ii. A copy of the independent certified public accountant’s unqualified opinion of the permittee’s financial statements for the latest completed fiscal year. To be eligible to use the financial test, the owner’s or operator’s financial statements shall 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 test. If the Department does not allow use of the test, the permittee shall provide alternate financial assurance that meets the requirements of this section.

tment 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 test. If the Department does not allow use of the test, the permittee shall provide alternate financial assurance that meets the requirements of this section.

iii. If the chief financial officer’s letter providing evidence of financial assurance includes financial data showing that the permittee satisfies either the ratio comparing total liabilities to net worth in Section E.4.e.(1)(a)ii. above, or the ratio comparing net income to total liabilities in Section E.4.e.(1)(a)iii. above that is different from data in the audited financial statements in the independent certified public accountant’s financial statements for the latest complete fiscal year, referred to in Section E.4.e.(2)(a)ii. above, or any other audited financial statement or data filed with the SEC, then a special report from the permittee’s independent certified public accountant to the permittee is required. The special report shall be based upon an agreed upon procedures 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.

ed upon procedures 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.

iv. If the chief financial officer’s letter provides a demonstration that the firm has assured for environmental obligations as provided in paragraph E.4.e.(1)(b)ii. above, 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.

(b) A permittee shall place all records and reports required by this section in the operating record and notify the Department that these items have been placed in the operating record before the initial receipt of waste for closure and post-closure care, and within 120 days after a corrective action remedy has been selected in accordance with this regulation.

(c) After all required records and reports have been placed in the operating record, the permittee shall annually update the information and place updated information in the operating record within 90 days following the close of the permittee’s fiscal year. The Department may allow an additional 45 days for a permittee who can demonstrate that 90 days is insufficient time to acquire audited financial statements. The updated information shall encompass all required reports and records.

permittee shall annually update the information and place updated information in the operating record within 90 days following the close of the permittee’s fiscal year. The Department may allow an additional 45 days for a permittee who can demonstrate that 90 days is insufficient time to acquire audited financial statements. The updated information shall encompass all required reports and records.

(d) The record keeping and reporting requirements are no longer applicable when the permittee:

i. Substitutes alternate financial assurance that is not subject to the Record keeping and reporting requirements; or,

ii. Is released from the requirements of providing financial assurance for closure, post-closure, and corrective action pursuant to this regulation.

(e) If the requirements of the financial component in Section E.4.e.(1) above are no longer met, within 120 days following the end of the facility’s fiscal year, the permittee shall:

i. Obtain alternative financial assurance that meets the requirements of this section;

ii. Place the required submissions for that assurance in the operating record; and,

iii. Notify the Department that the permittee no longer meets the criteria of the financial test and that alternate assurance has been obtained.

(f) Based on a reasonable belief that the requirements of the financial component are no longer met, at any time the Department may require the submittal of reports of its financial condition in addition to or including current financial test documentation pursuant to this regulation. If the Department finds that the permittee no longer meets the requirements of the financial component, the permittee shall provide alternate financial assurance that meets the requirements of this regulation.

met, at any time the Department may require the submittal of reports of its financial condition in addition to or including current financial test documentation pursuant to this regulation. If the Department finds that the permittee no longer meets the requirements of the financial component, the permittee shall provide alternate financial assurance that meets the requirements of this regulation.

(3) Calculation of costs to be assured. 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 pursuant to this regulation, the permittee shall include cost estimates required for municipal solid waste management facilities under this part, as well as cost estimates required for the following environmental obligations, if it assures them through a financial test: obligations associated with UIC facilities under 40 CFR part 144, petroleum underground storage tank facilities under 40 CFR part 280, PCB storage facilities under 40 CFR part 761, and hazardous waste treatment, storage, and disposal facilities under 40 CFR parts 264 and 265.

f. Local Government Financial Test. A permittee that satisfies the requirements of Sections E.4.f.(1) through (3) may demonstrate financial assurance up to the amount specified in Section E.4.f.(4) below:

(1) Financial Component.

CB storage facilities under 40 CFR part 761, and hazardous waste treatment, storage, and disposal facilities under 40 CFR parts 264 and 265.

(1) Financial Component.

(a) The permittee shall satisfy one of the following two conditions:

i. If the permittee has outstanding, rated, general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, it shall have a current rating of Aaa, Aa, A, or Baa, as issued by Moody’s, or AAA, AA, A, or BBB, as issued by Standard and Poor’s on all such general obligation bonds; or,

ii. The permittee shall satisfy each of the following financial ratios based on the permittee’s most recent audited annual financial statement:

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

(bb) A ratio of annual debt service to total expenditures less than or equal to 0.20.

(b) The permittee shall prepare its financial statements in conformity with Generally Accepted Accounting Principles for governments and have its financial statements audited by an independent certified public accountant (or appropriate State agency).

o 0.05; and,

(bb) A ratio of annual debt service to total expenditures less than or equal to 0.20.

i. Is currently in default on any outstanding general obligation bonds; or,

ii. Has any outstanding general obligation bonds rated lower than Baa as issued by Moody’s or BBB as issued by Standard and Poor’s; or,

iii. Operated at a deficit equal to 5% or more of total annual revenue in each of the past two fiscal years; or,

iv. 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 in Section E.4.f.(1)(b) above. 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 use of the test.

(d) The following terms used in this Paragraph are defined as follows:

i. “Deficit” equals total annual revenues minus total annual expenditures;

ii. “Total revenues” include revenues from all taxes and fees but does not include the proceeds from borrowing or asset sales, excluding revenue from funds managed by local government on behalf of a specific third party;

iii. “Total expenditures” include all expenditures excluding capital outlays and debt repayment;

minus total annual expenditures;

iii. “Total expenditures” include all expenditures excluding capital outlays and debt repayment;

iv. “Cash plus marketable securities” is all the cash plus marketable securities held by the local government on the last day of a fiscal year, excluding cash and marketable securities designated to satisfy past obligations such as pensions; and,

v. “Debt service” is the amount of principal and interest due on a loan in a given time period, typically the current year.

(2) Public Notice Component. The local government permittee shall place a reference to the closure and post-closure care costs assured through the financial test into its next comprehensive annual financial report (CAFR) after the effective date of this section or prior to the initial receipt of waste at the facility, whichever is later. Disclosure shall 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 cost 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 shall be placed in the CAFR not later than 120 days after the corrective action remedy has been selected in accordance with this regulation. For the first year the financial test is used to assure costs at a particular facility, the reference may instead be placed in the operating 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

ter than 120 days after the corrective action remedy has been selected in accordance with this regulation. For the first year the financial test is used to assure costs at a particular facility, the reference may instead be placed in the operating 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 component.

(3) Record Keeping and Reporting Requirements.

(a) The local government permittee shall place the following items in the facility’s operating record and submit a copy to the Department:

i. A letter signed by the local government’s chief financial officer that:

(aa) Lists all the current cost estimates covered by a financial test as required;

(bb) Provides evidence and certifies that the local government meets the conditions of either the required rating for general obligation bonds or satisfies the required financial ratios pursuant to Section E.4.f.(1)(a) above, and financial statements and audits as required in Section E.4.f.(1)(b) above, and meets the criteria outlined in Section E.4.f.(1)(c) above regarding eligibility to assure its obligations; and,

(cc) Certifies that the local government meets the requirements established for public notification pursuant to Section E.4.f.(2) above, and the calculation of costs to be assured pursuant to Section E.4.f.(4) below;

equired in Section E.4.f.(1)(b) above, and meets the criteria outlined in Section E.4.f.(1)(c) above regarding eligibility to assure its obligations; and,

ii. The local government’s independently audited year-end financial statements for the latest fiscal year (except for local governments where audits are required every two years and where unaudited statements may be used in years when audits are not required), including the unqualified opinion of the auditor who shall be an independent, certified public accountant or an appropriate State agency that conducts equivalent comprehensive audits;

iii. A report to the local government from the local government’s independent certified public accountant (CPA) or the appropriate State agency based on performing an agreed upon procedures engagement relative to the financial ratios required by Section E.4. f.(1)(a)ii. of this section, if applicable, and the requirements for financial statements pursuant to Section E.4.f.(1)(b), and assuring obligations outlined in Sections E.4.f.(1)(c)iii. and iv. The CPA or State agency’s report should state the procedures performed and the CPA or State agency’s findings; and,

iv. A copy of the comprehensive annual financial report (CAFR) used to comply with the public notice requirements in Section E.4.f.(2) above or certification that the requirements of General Accounting Standards Board Statement 18 have been met.

)iii. and iv. The CPA or State agency’s report should state the procedures performed and the CPA or State agency’s findings; and,

(b) The record keeping and reporting requirements outlined in Section E.4.f.(3)(a) above shall be placed in the facility operating record and a copy submitted to the Department:

i. In the case of closure and post-closure care, prior to the initial receipt of waste at the facility; or,

ii. In the case of corrective action, not later than 120 days after the corrective action remedy is selected in accordance with the requirements of this regulation.

(c) After the initial placement of the items in the facility’s operating record, the local government permittee shall update the information and place the updated information in the operating record and submit a copy to the Department within 180 days following the close of the permittee’s fiscal year.

(d) The local government permittee is no longer required to meet the record keeping and reporting requirements outlined in Section E.4.f.(3) above when:

i. The permittee substitutes alternate financial assurance as specified in this section; or,

ii. The permittee is released from the requirements of this section in accordance with this regulation.

(d) The local government permittee is no longer required to meet the record keeping and reporting requirements outlined in Section E.4.f.(3) above when:

i. The permittee substitutes alternate financial assurance as specified in this section; or,

ii. The permittee is released from the requirements of this section in accordance with this regulation.

(e) A local government shall satisfy the requirements of the financial test at the close of each fiscal year. If the local government permittee no longer meets the requirements of the local government financial test it shall, within 210 days following the close of the permittee’s fiscal year, obtain alternative financial assurance that meets the requirements of this section, place the required submissions for that assurance in the operating record, and notify the Department that the permittee no longer meets the criteria of the financial test and that alternate assurance has been obtained.

(f) The Department, based on a reasonable belief that the local government permittee 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 permittee no longer meets the requirements of the local government financial test, the local government shall provide alternate financial assurance in accordance with this section.

(4) Calculation of Costs to be Assured. The portion of the closure, post-closure, and corrective action costs for which a permittee can assure under this Section is determined as follows:

tion, that the permittee no longer meets the requirements of the local government financial test, the local government shall provide alternate financial assurance in accordance with this section.

(4) Calculation of Costs to be Assured. The portion of the closure, post-closure, and corrective action costs for which a permittee can assure under this Section is determined as follows:

(a) If the local government permittee 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% of the local government’s total annual revenue.

(b) If the local government assures other environmental obligations through a financial test, including those associated with UIC facilities under 40CFR144.62, petroleum underground storage tank facilities under 40CFR280, PCB storage facilities under 40CFR761, and hazardous waste treatment, storage, and disposal facilities under 40CFR264 and 265, it shall add those costs to the closure, post-closure, and corrective action costs it seeks to assure under this Item.

g. Local Government Guarantee. A permittee may demonstrate financial assurance for closure, post-closure, and corrective action, as required in this regulation, by obtaining a written guarantee provided by a local government. The guarantor shall meet the requirements of the Local Government Financial Test in Section E.4.f. above, and shall comply with the terms of a written guarantee.

(1) Terms of the Written Guarantee. The guarantee shall be effective before the initial receipt of waste, in the case of closure, post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with this regulation. The guarantee shall provide the following:

ection E.4.f. above, and shall comply with the terms of a written guarantee.

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

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

ii. Establish a fully funded trust fund as specified in Section E.4.a. above in the name of the permittee.

(b) The guarantee shall remain in force unless the guarantor sends notice of cancellation by certified mail to the permittee and to the Department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the permittee and the Department, as evidenced by the return receipts.

(c) If a guarantee is canceled, the permittee shall, within 90 days following receipt of the cancellation notice by the permittee 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 permittee fails to provide alternate financial assurance within the 90 day period, the guarantor shall provide that alternate assurance within 120 days following the guarantor’s notice of cancellation, place evidence of the alternate assurance in the facility operating record, and notify the Department.

(2) Record Keeping and Reporting.

ng record, and notify the Department. If the permittee fails to provide alternate financial assurance within the 90 day period, the guarantor shall provide that alternate assurance within 120 days following the guarantor’s notice of cancellation, place evidence of the alternate assurance in the facility operating record, and notify the Department.

(2) Record Keeping and Reporting.

(a) The permittee shall place a certified copy of the guarantee along with the items required in Section E.4.f.(3) above, into the facility’s operating record and submit a copy to the Department before the initial receipt of waste in the case of closure, and post-closure care, or no later than 120 days after the corrective action remedy has been selected in accordance with this regulation.

(b) The permittee is no longer required to maintain the records specified in Section E.4.g.(2) above for the guarantee when:

i. The permittee substitutes alternate financial assurance as specified in this section; or,

ii. The permittee is released from the requirements of this section pursuant to the requirements for proper closure, completion of the post-closure care period, or completion of the corrective action remedy.

(c) If a local government guarantor no longer meets the requirements of the Local Government Financial Test in Section E.4.f. above, the permittee shall, within 90 days, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the Department. If the permittee fails to obtain alternate financial assurance within that ninety (90) day period, the guarantor shall provide that alternate assurance within the next 30 days.

al Government Financial Test in Section E.4.f. above, the permittee shall, within 90 days, obtain alternative assurance, place evidence of the alternate assurance in the facility operating record, and notify the Department. If the permittee fails to obtain alternate financial assurance within that ninety (90) day period, the guarantor shall provide that alternate assurance within the next 30 days.

h. State Approved Mechanism. A permittee may satisfy the requirements of this section by obtaining any other mechanism that meets the criteria for the language of the mechanism as specified in Section E.4.k. below, and that is approved by the Department.

i. Certificates of Deposit.

(1) A permittee may demonstrate financial assurance, wholly or in part, by assigning all rights, title and interest of a Certificate of Deposit (Certificate) to the Department, conditioned so that the permittee shall comply with the closure, post-closure care, or corrective action plan filed for the site. The amount of the Certificate shall be in an amount at least equal to the current closure, post-closure care, or corrective action cost estimate, whichever is applicable, for the site for which the permit application has been filed or any part thereof not covered by other financial assurance mechanisms. The permittee shall maintain the Certificate until proper final closure, post-closure care, or corrective action is completed. The original assignment of the Certificate of deposit shall be submitted to the Department to prove that the Certificate has been obtained and meets the requirements of this section. The Certificate shall be in the sole name of the South Carolina Department of Environmental Services and shall be issued by a financial institution that is insured by the Federal Deposit Insurance Corporation or Federal Savings and Loan Insurance Corporation. The Certificate may not have a maturity date of less than six (6) months

icate has been obtained and meets the requirements of this section. The Certificate shall be in the sole name of the South Carolina Department of Environmental Services and shall be issued by a financial institution that is insured by the Federal Deposit Insurance Corporation or Federal Savings and Loan Insurance Corporation. The Certificate may not have a maturity date of less than six (6) months. Those Certificates with a maturity date of less than one year shall provide for automatic renewal. In those instances where renewal is not automatic, the permittee shall renew or replace the instrument no less than 60 days before the maturity date.

(2) In addition to the certificate of deposit, the owners/operators shall establish a standby trust fund to receive payments using a trustee that has the authority to act as a trustee and that is regulated and examined by a Federal or State agency. The text of the standby trust fund shall be provided by the Department.

(3) The permittee shall be entitled to demand, receive, and recover the interest and income from the Certificate as it becomes due and payable as long as the market value of the Certificate plus any other mechanisms used continue to at least equal the amount of the estimated current closure, post-closure care, or corrective action cost.

(4) Whenever the approved closure or post-closure maintenance care cost estimates or corrective action cost estimate increases to an amount greater than the amount of the certificate of deposit, the permittee shall, within 60 days of the increase, cause the amount of the certificate of deposit to be increased to an amount at least equal to the new estimate or obtain other financial assurance pursuant to this regulation to cover the increase. Anytime the cost estimate decreases, the permittee may reduce the amount of the certificate of deposit to the new estimate following written approval by the Department

l, within 60 days of the increase, cause the amount of the certificate of deposit to be increased to an amount at least equal to the new estimate or obtain other financial assurance pursuant to this regulation to cover the increase. Anytime the cost estimate decreases, the permittee may reduce the amount of the certificate of deposit to the new estimate following written approval by the Department. The permittee shall submit a certificate of deposit and assignment reflecting the new cost estimate within 60 days of the change in the cost estimate.

(5) The Department will return the original assignment and certificate of deposit, if applicable, to the issuing institution for termination when the permittee substitutes acceptable alternate financial assurance or if the permittee is no longer required to maintain financial assurance in accordance with this regulation.

j. Use of Multiple Financial Mechanisms. A permittee may demonstrate financial assurance for closure, post-closure, and corrective action, as required in this regulation by establishing more than one financial mechanism per facility except that mechanisms guaranteeing performance rather than payment, may not be combined with other instruments. The mechanisms shall be as specified in Sections E.4.a., b., c., d., e., f., g., h. and i., except that financial assurance for an amount at least equal to the current cost estimate for closure, post-closure care, and/or corrective action may be provided by a combination of mechanisms rather than a single mechanism.

k. The language of the mechanisms listed in Sections E.4. a., b., c., d., e., f., g., h. and i. of this section shall ensure that the instruments satisfy the following criteria:

(1) The financial assurance mechanisms shall ensure that the amount of funds assured is sufficient to cover the costs of closure, post-closure care, and corrective action for known releases when needed;

k. The language of the mechanisms listed in Sections E.4. a., b., c., d., e., f., g., h. and i. of this section shall ensure that the instruments satisfy the following criteria:

(2) The financial assurance mechanisms shall ensure that funds will be available in a timely fashion when needed;

(3) The financial assurance mechanisms shall be obtained by the permittee by the effective date of these requirements or prior to the initial receipt of solid waste, whichever is later, in the case of closure and post-closure care, and no later than 120 days after the corrective action remedy has been selected in accordance with the requirements of this regulation until the permittee is released from the financial assurance requirements pursuant to this regulation;

(4) The financial assurance mechanisms shall be legally valid, binding, and enforceable under State and Federal law.

5. Discounting. The Department may allow discounting of closure cost estimates, post-closure cost estimates, and/or corrective action costs up to the rate of return for essentially risk free investments, net of inflation, under the following conditions:

a. The Department determines that the cost estimates are complete and accurate and the permittee has submitted a statement from a S.C. Registered Professional Engineer so stating;

b. The Department finds the facility in compliance with applicable and appropriate permit conditions;

c. The Department determines that the closure date is certain and the permittee certifies that there are no foreseeable factors that will change the estimate of site life; and,

d. Discounted cost estimates shall be adjusted annually to reflect inflation and years of remaining life.

artment finds the facility in compliance with applicable and appropriate permit conditions;

c. The Department determines that the closure date is certain and the permittee certifies that there are no foreseeable factors that will change the estimate of site life; and,

d. Discounted cost estimates shall be adjusted annually to reflect inflation and years of remaining life.

6. Incapacity of Permittee or Financial Institution.

a. A permittee shall notify the Department by certified mail within 10 days of the commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming the permittee as debtor.

b. In the event of bankruptcy of the trustee or issuing institution, or a suspension or revocation of the authority of the trustee or institution, that issues a surety bond, letter of credit, certificate of deposit, or insurance policy pursuant to this regulation, the permittee shall be deemed in violation of the financial assurance requirements. The permittee shall establish with Department approval other financial assurance within 60 days of such event.

7. Default by Permittee.

a. The Department may take possession of a financial assurance fund if the permittee fails to:

(1) Complete closure or post-closure maintenance care in accordance with the Department approved facility plan;

(2) Complete corrective action; or,

(3) Renew or provide alternate acceptable financial assurance as required.

b. Prior to taking possession of a financial assurance funds, the Department shall:

(1) Issue a notice of violation or order alleging that the permittee has failed to perform closure or post-closure care in accordance with the closure or post-closure care plan or permit requirements; and,

(3) Renew or provide alternate acceptable financial assurance as required.

b. Prior to taking possession of a financial assurance funds, the Department shall:

(2) Provide the permittee seven days notice and an opportunity for a hearing.

F. Permit Applicant Requirements.

1. Disclosure. Prior to issuance of a Department permit for Classes One, Two, and Three landfills, a disclosure statement, pursuant to S.C. Code Section 44-96-300 and in a format approved by the Department, shall be submitted to the Department. The Department may accept one disclosure statement for multiple facility permit applicants. This requirement shall not apply if the applicant is a local government or a region comprised of local governments. The disclosure statement shall contain the following information with regard to the applicant and his responsible parties:

a. The full name, business address, and social security number of all responsible parties;

b. A description of the experience and credentials, including any past or present permits or licenses for the collection, transportation, treatment, storage, or disposal of solid waste issued to or held by the applicant within the past five years;

c. A listing and explanation of all convictions by final judgment of a responsible party in a state or federal court, whether under appeal or not, of a crime of moral turpitude punishable by a fine of five thousand dollars ($5,000.00) or more or imprisonment for one year or more, or both, within five years immediately preceding the date of the submission of the permit application;

rs;

d. A listing and explanation of all convictions by final judgment of a responsible party in a state or federal court, whether under appeal or not, of a criminal or civil offense involving a violation of an environmental law punishable by a fine of five thousand dollars ($5,000.00) or more or imprisonment for one year or more, or both, in a state or federal court within five years of the date of submission of the permit application;

e. A listing and explanation of the instances in which a disposal facility permit held by the applicant was revoked by final judgment in a state or federal court, whether under appeal or not, within five years of the date of submission of the permit application;

f. A listing and explanation of all adjudications of the applicant for having been in contempt of any valid court order enforcing any federal environmental law or any state environmental law relative to the activity for which the permit is being sought, within five years of the date of submission of the permit application; and,

ears of the date of submission of the permit application;

g. If a responsible party of an applicant is a chartered lending institution or a publicly held corporation reporting under the Federal Securities and Exchange Act of 1934 or a wholly-owned subsidiary of a publicly held corporation reporting under the Federal Securities and Exchange Act of 1934, the information required under S.C. Code Section 44-96-300(A)(6), such responsible party shall submit to the Dept. reports covering its structure and operations as required by the chartering body or the Federal Securities and Exchange Commission. The Department is authorized to require a responsible party to provide such additional information to the Department as is reasonably necessary to make the determinations provided for in S.C. Code Section 44-96-300.

2. Permittee Requirements.

a. The permittee is required to notify the Department by certified mail within 10 days of any of the following conditions:

(1) Commencing a voluntary or involuntary proceeding in bankruptcy, naming the permittee as debtor;

(2) The sale of the holder of the permit or approval;

(3) The sale of the permitted or approved facility; or,

(4) The dissolution of the holder of the permit or approval.

b. Transfer of Ownership.

(1) The Department may, upon written request, transfer a permit to a new permittee where no other change in the permit is necessary. The proposed new owner of a permitted landfill shall, prior to the scheduled change in ownership, submit to the Department:

lity; or,

(4) The dissolution of the holder of the permit or approval.

b. Transfer of Ownership.

(a) Documentation of the new owner’s name and address.

(b) Documentation of the name and address of the party responsible for the operation and maintenance of the landfill, if different from the owner.

(c) A written agreement signed by both parties indicating the intent to change ownership or operating responsibility of the facility. The agreement shall contain:

i. A specific date for the transfer of permit responsibility; and,

ii. A statement that the new permittee will operate the landfill in accordance with the existing permit in effect at the time of transfer.

(d) Documentation of financial assurance as required in Part I, Section E. of this regulation. The previous owner shall maintain financial assurance responsibilities until the new owner can demonstrate satisfactory compliance with Part I, Section E. of this regulation.

(e) A Disclosure Statement for the new owner pursuant to Subsection F.1. above.

(2) Upon approval of all items required by Subsection F.2.b.(1) above, the Department shall transfer the permit from the original owner of the landfill to the new owner.

(3) A request for a permit modification shall be submitted with the transfer of ownership request, if the landfill will not be operated in accordance with the approved plans. The permit modification shall be in accordance with all provisions of this regulation.

ction F.2.b.(1) above, the Department shall transfer the permit from the original owner of the landfill to the new owner.

(4) The new owner shall submit legal documentation of the transfer of ownership of the landfill within 15 days of the actual transfer.

G. Severability. Should any regulation, paragraph, sentence, clause or phrase of this regulation be declared unconstitutional or invalid for any reason, the remainder of this regulation shall not be affected thereby.

H. Violations and Penalties. A violation of this regulation or violation of any permit, order, or standard subjects the person to the issuance of a Department order, or a civil or criminal enforcement action in accordance with S.C. Code Section 44-96-450. In addition, the Department may impose reasonable civil penalties not to exceed ten thousand dollars ($10,000.00) for each day of violation of the provisions of this regulation, including violation of any order, permit or standard.

I. Appeals.

1. A Department decision involving the issuance, denial, renewal, suspension, revocation or request for a variance of a permit may be appealed by an affected person with standing pursuant to applicable law, including S.C. Code Title 48, Chapter 6; and Title 1, Chapter 23. Any person to whom an order is issued may appeal it pursuant to applicable law.

2. Determinations of Need and Consistency pursuant to Part I, Section D.1. may be appealed at the time such determinations are issued and may not be raised as part of an appeal of a decision on the permit.

J. Variances. Any request for variances to these rules and regulations shall be directed in writing to, and will be considered by, the Department on an individual basis.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.