[Federal Register Volume 59, Number 196 (Wednesday, October 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25063]


[[Page Unknown]]

[Federal Register: October 12, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 258, 264, and 265

[FRL-5087-7]
RIN 2050-A77

 

Financial Assurance Mechanisms Corporate Owners and Operators of 
Municipal Solid Waste Landfill Facilities and Hazardous Waste 
Treatment, Storage, and Disposal Facilities

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes to amend 
the financial assurance regulations under the Resource Conservation and 
Recovery Act in two program areas. First, the Agency proposes to add 
two financial assurance mechanisms to those currently available to 
assure closure, post-closure, or corrective action costs associated 
with municipal solid waste landfills under subtitle D: (1) a financial 
test for use by corporate owners and operators, and (2) a guarantee for 
use by firms that wish to guarantee the costs for an owner or operator. 
Second, the Agency proposes to modify the domestic asset component of 
the corporate financial test for hazardous waste treatment, storage, 
and disposal facilities under subtitle C.

DATES: Comments on this proposed rule must be received on or postmarked 
on or before December 12, 1994.

ADDRESSES: Written comments on this proposal should be addressed to the 
docket clerk at the following address: U.S. Environmental Protection 
Agency, RCRA Docket (OS-305), 401 M Street SW., Washington, DC 20460. 
Commenters should send one original and two copies and place the docket 
number (F-93-FTMP-FFFFF) in the comments. The docket is open from 9 
a.m. to 4 p.m., Monday through Friday, except for Federal holidays. 
Docket materials may be reviewed by appointment by calling (202) 260-
9327. Copies of docket material may be made at no cost, with a maximum 
of 100 pages of material from any one regulatory docket. Additional 
copies are $0.15 per page.

FOR FURTHER INFORMATION CONTACT: RCRA Hotline at 1-800-424-9346 (in 
Washington, D.C., call (703) 920-9810), or Dale Ruhter (703) 308-8192, 
Office of Solid Waste, U.S. Environmental Protection Agency, 401 M 
Street SW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Background
III. Summary of Proposed Rule
IV. Section-by-Section Analysis of Proposed Subtitle D Provisions
    A. Corporate Financial Test (section 258.74(e))
    B. Corporate Guarantee (section 258.74(g))
    C. Calculation of Obligations
V. Domestic Asset Requirement of the Subtitle C Corporate Financial 
Test. (sections 264.143, 264.145, 264.147, 265.143, 265.145, and 
265.147)
VI. Analysis Supporting this Proposed Rule
    A. Development of the Subtitle C Corporate Financial Test
    B. The Subtitle D Corporate Financial Test Analysis
VII. National Solid Wastes Management Association Rulemaking 
Petition
    A. Discussion of the Petition
    B. The Meridian Test
    C. Request for Comment on Allowing Owners and Operators to 
Discount Costs
VIII. State Program Approval
IX. Implementation
X. State Authorization
XI. Economic and Regulatory Impacts
    A. Executive Order 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act

I. Authority

    These amendments to part 258 are proposed under the authority of 
sections 1008, 4004, and 4010 of the Resource Conservation and Recovery 
Act (RCRA), as amended, 42 U.S.C. 6907, 6944, and 6949a. The amendments 
to parts 264 and 265 are proposed under RCRA sections 3004 and 3005.

II. Background

    On October 9, 1991, the Agency promulgated revised criteria for 
municipal solid waste landfills (MSWLFs), which established minimum 
Federal standards to assure that MSWLFs are designed and managed in a 
manner that is protective of human health and the environment, taking 
into account the practical capability of the MSWLFs (see 56 FR 50978). 
The minimum Federal standards include location restrictions, facility 
design and operating criteria, groundwater monitoring, corrective 
action, financial assurance, closure, and post-closure care 
requirements.
    The Agency proposed the MSWLF criteria, including financial 
assurance requirements, on August 30, 1988 (see 53 FR 33314). The 
purpose of the financial assurance requirements of the MSWLF criteria 
was to assure that adequate funds will be readily available to cover 
the costs of closure, post-closure care, and corrective action 
associated with MSWLFs. The Agency believes that these financial 
assurance provisions are an important part of the MSWLF criteria for 
two reasons. First, when an owner or operator does not have funds 
readily available to address the environmental needs at a facility, 
delays in addressing those needs can result. Second, if the owner or 
operator does not have funds to address environmental needs at its 
facilities, those needs are typically addressed under federal or state 
cleanup authorities, rather than by the party responsible for the 
facility.
    In the August 30, 1988 proposal, rather than propose specific 
financial assurance mechanisms, the Agency proposed a financial 
assurance performance standard. The Agency solicited public comment on 
this performance standard approach and, at the same time, requested 
comment on whether the Agency should develop financial test mechanisms 
for use by local governments and corporations.
    Commenters on the proposed rule argued that the proposed 
performance standard lacked sufficient detail to guide States in the 
development and implementation of requirements with any consistency 
among States, and that the Agency should develop specific mechanisms 
that could be used to demonstrate financial assurance. Commenters also 
supported the development of a local government financial test and a 
corporate financial test.
    In response to comment, the Agency promulgated several specific 
financial mechanisms in the October 9, 1991, final rule. Those 
mechanisms include trust funds, surety bonds, letters of credit, 
insurance, and State assumptions of responsibility (Sec. 258.74). In 
addition, to retain States' flexibility in implementing the subtitle D 
program, the Agency promulgated the financial assurance performance 
standard of Sec. 258.74, which allows approved States to use any State-
approved mechanism that meets that performance standard.
    Commenters on the August 30, 1988, proposal also supported the 
development of financial tests for local governments and for 
corporations. The Agency agreed with commenters but, at the time the 
final MSWLF criteria were promulgated, the Agency had not completed the 
analyses necessary to propose those financial tests. Thus, in the 
October 9, 1991, preamble, the Agency announced its intention to 
develop both a local government and corporate financial test in advance 
of the effective date of the financial assurance provisions. The Agency 
then proceeded to conduct the necessary analysis, and develop a local 
government and corporate financial test for MSWLF owners and operators.
    To allow time to develop financial tests, the Agency promulgated an 
effective date of April 9, 1994, for the financial assurance provisions 
in the July 1, 1991 notice. In doing so, the Agency believed it had 
allowed adequate time to promulgate the local government and corporate 
financial tests in advance of the effective date. However, those 
financial tests are taking longer to develop than the Agency originally 
anticipated. As the April 1994, deadline approached, the Agency 
recognized that it would be unable to promulgate final financial tests 
by that time. Thus, on October 11, 1993, the Agency extended the 
effective date of the financial assurance provisions until April 9, 
1995 (see 58 FR 51536) to allow additional time to develop the 
financial tests.
    The Agency proposed a local government financial test on December 
27, 1993 (see 58 FR 68353); this document proposes the corporate 
financial test for MSWLFs.

III. Summary of Proposed Rule

    This proposed rule would add a corporate financial test to the 
financial assurance mechanisms currently available to owners and 
operators of subtitle D MSWLFs. It also would allow corporations to use 
that financial test to guarantee the costs of an owner or operator. It 
would allow owners and operators to use a combination of financial 
assurance mechanisms, including this financial test, to assure the 
costs associated with their facilities. Finally, this rule proposes 
revisions to one portion of the subtitle C corporate financial test, 
specifically, to the domestic asset requirement of that test. 
Discussion of the proposed revisions to the subtitle D provisions can 
be found in sections IV-V of this preamble. A discussion of the 
proposed revisions to the subtitle C corporate financial test can be 
found in section IX.

IV. Section-by-Section Analysis of Proposed Subtitle D Provisions

A. Corporate Financial Test (Section 258.74(e))

    This proposed corporate financial test includes a financial 
component and a domestic asset component. Owners and operators that 
meet the requirements of the financial test also must comply with 
certain recordkeeping and reporting requirements. Each requirement is 
described below.
1. Financial Component (Section 258.74(e)(1))
    The financial component is designed to measure viability of the 
owner or operator, based on its current financial condition. To satisfy 
the financial component, a firm must have a minimum tangible net worth 
of $10 million plus the costs it seeks to assure (e.g., closure, post-
closure, corrective action), either satisfy a bond rating requirement, 
or pass one of two financial ratios, and satisfy a domestic asset 
requirement.
    a. Minimum Size Requirement. In Sec. 258.74(e)(1)(ii), the Agency 
is proposing to require firms using the financial test to have a 
tangible net worth at least equal to the sum of the costs they seek to 
assure through a financial test plus $10 million. Under proposed 
Sec. 258.74 (e)(3), the costs an owner or operator seeks to assure are 
equal to the current cost estimates for closure, post-closure care, and 
corrective action or the sum of such costs to be covered, and any other 
environmental obligations assured by a financial test. The owner or 
operator must 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 144.62, 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.
    The Agency is proposing this minimum tangible net worth requirement 
to ensure that the costs of closure, post-closure care, or corrective 
action do not force a firm into bankruptcy. Further, an analysis of a 
sample of bankrupt firms conducted by the Agency demonstrated that 
firms with less than $10 million in net worth failed four times more 
frequently than firms with greater than $10 million in tangible net 
worth.
    As a result, the Agency believes that this minimum net worth should 
be required as an initial screen for corporations in demonstrating 
financial responsibility for the very large costs of closure, post-
closure care, and corrective action. The Agency then combined this 
requirement with other financial criteria to develop the financial test 
described in this proposed rule. A more detailed discussion of this 
analysis can be found in Section V. of this preamble and the Background 
Document developed in support of this rulemaking.
    b. Bond Rating/Financial Ratio Alternatives. The Agency is 
proposing to allow firms that meet the minimum size requirement to 
satisfy the remaining requirements of the financial test in one of two 
ways.
    First, under the proposed Sec. 258.74(e)(1)(i)(A), a firm could 
satisfy the financial component if its most recent bond rating is 
investment grade, that is, Aaa, Aa, A or Baa, as issued by Moody's, or 
AAA, AA, A, or BBB, as issued by Standard and Poor's. The Agency is 
proposing this option because it believes that a firm's bond rating 
incorporates an evaluation of a firm's financial management practices. 
Bond ratings reflect the expert opinion of bond rating services, which 
are organizations that have established credibility in the financial 
community for their assessments of firm financial conditions. An 
analysis of bond ratings showed that bond ratings have been a good 
indicator of firm defaults, and that few firms with investment grade 
ratings have in fact gone bankrupt.
    The proposal to include a bond rating option in this financial test 
is consistent with other Agency programs. For example, the regulations 
governing TSDFs under 40 CFR parts 264 and 265, petroleum underground 
storage tanks under 40 CFR part 280, UIC facilities under 40 CFR part 
144, and PCB commercial storage facilities under 40 CFR part 761 all 
consider bond ratings as part of their financial tests. The local 
government financial test for owners and operators of MSWLFs under 40 
CFR part 258, which was proposed on December 27, 1993 (58 FR 68353) 
also would allow a bond rating option.
    Second, to provide the regulated community with flexibility in 
meeting the financial test, the Agency is also proposing a ratio 
alternative to the bond rating. In order to satisfy the ratio 
requirement, a firm would have to have either:
     a leverage ratio of less than 1.5 based on the ratio of 
total liabilities to tangible net worth. This ratio attempts to show 
the degree to which a firm is leveraged. This particular measure shows 
the relationship between total liabilities to tangible net worth. Firms 
with higher values for this ratio are more likely to suffer net losses 
than those with lower values; or
     a profitability ratio of greater than 0.10 based on the 
ratio of the sum of net income plus depreciation, depletion, and 
amortization, minus $10 million, to total liabilities. This ratio 
attempts to show cash-flow from operations relative to the firm's total 
liabilities. Firms with higher values for this measure are more likely 
to meet their obligations than those firms with lower values.
    The Agency selected these two specific financial ratios with their 
associated thresholds based on their ability to differentiate between 
viable and bankrupt firms. The Agency's analysis demonstrated that 
leverage ratios (i.e., total liabilities/net worth) and profitability 
ratios (i.e., cash flow/total liabilities) are particularly good 
discriminators of financial health. The Agency selected as thresholds 
for these ratios values that, together with the other financial test 
criteria, minimized the costs associated with demonstrating financial 
responsibility. A more detailed discussion of this analysis can be 
found in Section V. of this preamble and the Background Document 
developed in support of this rulemaking.
    c. Domestic Assets Requirement. In Sec. 258.74(e)(1)(iii), the 
Agency is proposing that all firms using the financial test have assets 
in the United States at least equal to the costs they seek to assure 
through a financial test. (see paragraph a. of this section, ``Minimum 
Size Requirement,'' for more discussion on assured costs) The domestic 
asset requirement is intended to ensure that the Agency has access to 
funds in the event of bankruptcy. Without this requirement, the Agency 
could experience substantial difficulty in accessing funds of bankrupt 
firms that have their assets outside of the United States. The Agency 
recognizes that this minimum assets requirement may be too low and 
solicits comment on an assets requirement that provides the Agency with 
adequate assurance that funds will be available in the event that an 
owner or operator enters bankruptcy, but does not overly burden the 
regulated community.
2. Recordkeeping and Reporting Requirements (Section 258.74(e)(2)
    The Agency is proposing that after a firm has determined that it is 
eligible to use this corporate financial test, it would be required to 
document its use of the test by placing three items (discussed below) 
in the facility operating record. These requirements would help ensure 
that the self-implementing aspect of the proposed test requirements 
have been met. In the case of closure and post-closure care, these 
items would have to be placed in the operating record prior to the 
initial receipt of waste or the effective date of the final rule, 
whichever is later, or in the case of corrective action, no later than 
120 days following selection of a corrective action remedy. This 
proposed requirement, in the case of corrective action remedy, is 
consistent with the subtitle C provision in the subpart S proposed 
rulemaking (55 FR at 30855 July 27, 1990), as well as the Financial 
Assurance for Corrective Action (FACA) proposed rulemaking (51 FR at 
37854 October 24, 1986). Please refer to these proposals for more 
discussion on this requirement. In addition, owners and operators would 
be required to update these items annually, and to notify the State 
Director and obtain alternative financial assurance if the firm is no 
longer able to pass the financial test. These proposed criteria are 
described below.
    a. Chief financial officer (CFO) letter. Under 
Sec. 258.74(e)(2)(i), the owner or operator would be required to submit 
a letter from the firm's CFO. The letter would demonstrate that the 
firm has complied with the criteria of the test. Specifically, the 
letter would list all cost estimates covered by a financial test and 
provide evidence that the firm satisfies the financial criteria of the 
test (i.e., the financial component, including the minimum size 
component and domestic assets requirement). The Agency expects that 
this evidence will include a worksheet or similar demonstration showing 
that the firm's annual financial data meet the specific measures 
required by the test.
    b. Accountant's opinion. Under Sec. 258.74(e)(2)(ii), the Agency is 
also proposing to require the owner or operator to place in the 
operating record the opinion from the independent certified public 
accountant of the firm's financial statements for the latest completed 
fiscal year. Further requirements of the CFO's letter are described in 
Sec. 258.74(e)(2)(iii). An unqualified opinion (i.e., a ``clean 
opinion'') from the accountant demonstrates that the firm has prepared 
its financial statements in accordance with generally accepted 
accounting principles for corporations. However, an adverse opinion, 
disclaimer of opinion, or any qualification in the opinion would 
automatically disqualify the owner or operator from using the corporate 
financial test. The State Director of an approved State may evaluate 
qualified opinions on a case by case basis, however, and accept such 
opinions if the matters which form the basis for the qualified opinion 
are insufficient to warrant disallowance of the test.
    c. Special report from the independent certified public accountant. 
The third item to be placed in the operating record would be a special 
report of the independent certified public accountant upon examination 
of the chief financial officer's letter. In this report, the accountant 
would confirm that the data used in the CFO letter to pass the test 
were appropriately derived from, the audited, year-end financial 
statements. The purpose of this special report is to ensure that the 
accountant has confirmed that the financial data used in the CFO letter 
is appropriately presented.
    This report would not be required if the CFO uses financial test 
figures directly from the annual financial statements provided to the 
Securities Exchange Commission (SEC). However, this report is required 
if the CFO letter uses data that is derived from and is not identical 
to the data in the annual financial statements provided to the SEC.
    For example, in computing financial assurance under one alternative 
owners and operators are required to recognize total liabilities, 
including those associated with ``post-retirement benefits other than 
pensions (OPEB).'' (Please see the discussion of FASB 106 in section VI 
of this preamble.) The Financial Accounting Standards Board (FASB) 
allows the use of two different methods when accounting for these 
liabilities in annual financial statements. FASB 106 allows employers 
the option of accounting for OPEB obligations in one year (immediate 
recognition) or over a consecutive number of years (delayed 
recognition). Since both the immediate and delayed recognition methods 
are allowed by FASB 106, EPA does not require owners and operators that 
are demonstrating they meet the requirements of the financial test to 
use the same accounting method for OPEB obligations that is used for 
annual SEC submission purposes. For example, the owner or operator may 
use the immediate recognition method in the financial statement 
prepared for the SEC, but the delayed recognition method in computing 
liabilities for the purpose of demonstrating RCRA financial assurance.
    EPA is proposing this approach in today's rule because it does not 
believe a separate CPA statement is needed where the CFO simply takes 
figures directly from an audited financial statement. This is a 
straight forward process. On the other hand, where the CFO ``derives'' 
the figures--for example, by using different accounting procedures to 
determine OPEB liabilities--the process may require a high level of 
financial expertise. In these cases, EPA believes review by an 
independent auditor is appropriate. The Agency solicits comment on this 
approach and whether this approach would be appropriate for the 
financial test under subtitle C.
    d. Annual updates and placement of financial test documentation.The 
financial test proposed in this action would require firms to place the 
items specified in Sec. 258.74(e)(2) in the operating record and notify 
the State Director that these items have been placed in the facilities 
operating record. Because the financial condition of firms can change 
over time, under Sec. 258.74(e)(2), firms will be required to update 
annually all financial test documentation, including each of the items 
described above, within 90 days of the close of the firm's fiscal year. 
Under Sec. 258.74 (e)(2)(iv), the owner or operator is not required to 
submit the items specified in Sec. 258.74(e)(2) when he substitutes 
alternate financial assurance as specified in this section; or is 
released from the requirements of this section in accordance with 
Sec. 258.71(b), Sec. 258.72(b), or Sec. 258.73(b).
    e. Alternate financial assurance. Under Sec. 258.74(e)(2)(v), if a 
firm can no longer meet the terms of the financial test, the owner or 
operator would have to notify the State Director and obtain alternative 
financial assurance within 120 days of the close of the firm's fiscal 
year. The alternative financial assurance selected by the owner or 
operator would have to meet the terms of this section and the required 
submissions for that assurance would have to be placed in the 
facility's operating record. The owner or operator would have to notify 
the State Director that he no longer meets the criteria of the 
financial test and that alternate financial assurance has been 
obtained.
    f. Current financial test documentation. Under proposed 
Sec. 258.74(e)(2)(vi), the Director of an approved State may, based on 
a reasonable belief that the owner or operator no longer meets the 
requirements of paragraph (e)(1) of this section, require the owner or 
operator to provide current financial test documentation as specified 
in paragraph (e)(2) of this section. Although the Agency anticipates 
this provision will not be used often, it can be important in 
situations where the financial condition of the owner or operator comes 
into question. The State Director should have the flexibility to 
require the owner or operator to provide current financial test 
documents if information arises that raises serious questions about the 
financial conditions of the owner or operator. For example, an owner or 
operator may be forced into bankruptcy by a large, well-publicized 
liability judgment. In such cases, the State Director should be able to 
investigate the owner's or operator's change in financial condition, 
and require them to demonstrate that they still meet the financial 
test. The Agency requests comments from the public on this proposed 
requirement.
    B. Corporate Guarantee (Section 258.74(g))
    This rule proposes to allow owners and operators to comply with 
financial responsibility requirements for MSWLFs using a guarantee 
provided by another private firm (the guarantor). Under such a 
guarantee, the guarantor promises to pay for or carry out closure, 
post-closure care or corrective action activities on behalf of the 
owner or operator of a MSWLF if the owner or operator fails to do so. 
Guarantees, like other third-party mechanisms, such as letters of 
credit or surety bonds, ensure that a third party is obligated to cover 
the costs of closure, post-closure care, or corrective action in the 
event that the owner or operator goes bankrupt or fails to conduct the 
required activities. At the same time, a guarantee is an attractive 
compliance option for owners and operators, especially those affiliated 
with larger corporations because guarantees are generally much less 
expensive than other third-party mechanisms.
    The proposed rule would allow three types of qualified guarantors: 
(1) The parent corporation or principal shareholder of the owner or 
operator (e.g., a corporate parent or grandparent), (2) a firm whose 
parent company is also the parent company of the owner or operator (a 
corporate sibling), and (3) other related and non-related firms with a 
``substantial business relationship'' with the owner or operator 
(including subsidiaries of the owner or operator). Guarantors also 
would be required to meet the conditions of the corporate financial 
test.
    To comply with the requirements of the corporate guarantee, the 
owner or operator would be required to place in the facility operating 
record a copy of the guarantee contract and copies of all of the 
financial test documentation that is required of the guarantor as 
specified in the corporate financial test requirements. The terms of 
the guarantee contract must specify that, if the owner or operator 
fails to perform closure, post-closure care, or corrective action in 
accordance with the requirements of part 258, the guarantor will 
either: (1) carry out those activities or pay the costs of having them 
conducted by a third party (performance guarantee), or (2) fund a trust 
to pay the costs of the activities (payment guarantee). The required 
documentation must be placed in the operating record, in the case of 
closure and post-closure care, prior to the initial receipt of waste or 
the effective date of the final rule, whichever is later, or in the 
case of corrective action, no later than 120 days following selection 
of a corrective action remedy. The financial test documentation from 
the guarantor must be updated annually, in accordance with the 
requirements of the corporate financial test.
    The financial test documentation required of the guarantor is the 
same as that required of a corporate financial test user except that, 
in cases where the guarantor is not a corporate parent, grandparent, or 
sibling, the letter from the chief financial officer must address the 
``substantial business relationship'' (as defined in Sec. 264.141(h)) 
that exists between the owner or operator and the guarantor. In 
particular, the letter must describe the relationship and the 
consideration received from the owner or operator in exchange for the 
guarantee, which is necessary to ensure that the contract is valid and 
enforceable.
    This proposal would require that guarantors agree to remain bound 
under this guarantee for so long as the owner or operator must comply 
with the applicable financial assurance requirements of subpart G of 
part 258, except that guarantors may cancel this guarantee by sending 
notice to the State Director and to the owner or operator. The proposal 
would provide that such cancellation cannot become effective earlier 
than 120 days after receipt of such notice by both the State Director 
and the owner or operator.
    If a guarantee is cancelled, the proposal would require the owner 
or operator to, within 90 days following receipt of the cancellation 
notice by the owner or operator and the State Director, obtain 
alternate financial assurance, place evidence of that alternate 
financial assurance in the facility operating record, and notify the 
State Director. If the owner or operator fails to provide alternate 
financial assurance within the 90-day period, the guarantor must 
provide that alternate assurance within 120 days, place evidence of the 
alternate assurance in the facility operating record, and notify the 
State Director.
    If the corporate guarantor no longer meets the requirements of the 
financial test, the owner or operator would have to, within 90 days 
following the close of the guarantor's fiscal year, obtain alternative 
assurance, place evidence of the alternate assurance in the facility 
operating record, and notify the State Director. If the owner or 
operator fails to provide alternate financial assurance within the 90-
day period, the guarantor would be required to provide that alternate 
assurance within 120 days following the close of the guarantor's most 
recent fiscal year, place evidence of the alternate assurance in the 
facility operating record, and notify the State Director.

C. Calculation of Obligations

    EPA currently allows financial tests as mechanisms to demonstrate 
financial assurance for environmental obligations under several 
programs. These include hazardous waste treatment, storage, and 
disposal facilities under 40 CFR parts 264 and 265, petroleum 
underground storage tanks under 40 CFR part 280, UIC facilities under 
40 CFR part 144, and PCB commercial storage facilities under 40 CFR 
part 761. Under each of these programs, the Agency requires that the 
owner or operator include all of the costs it is assuring through a 
financial test when it calculates its obligations. This policy prevents 
an owner or operator from using the same assets to assure different 
obligations under different programs. The Agency believes this is vital 
to assure the effectiveness of the financial test and assure that 
assets are available to assure all of the environmental obligations 
covered by the test. Thus, consistent with Agency policy, today's 
proposal requires a firm using a financial test for its subtitle D 
obligations also to include those costs covered under other Agency 
programs when it calculates assured costs.

V. Domestic Asset Requirement for the Subtitle C Corporate Financial 
Test

    The Agency is proposing to modify the domestic asset requirement of 
the current subtitle C financial test. The current regulations at 
Secs. 264.143(f)(1)(i)(D) and (ii)(D); 265.143(e)(1) (i)(D) and 
(ii)(D); 264.145(f)(1) (i)(D) and (ii)(D); 265.145(e)(1) (i)(D) and 
(ii)(D); 264.147(f)(1) (i)(D) and (ii)(D); and 265.147(f)(1) (i)(D) and 
(ii)(D) require that corporations using the financial test have assets 
located in the U.S. amounting to at least 90% of total assets or at 
least six times the sum of costs assured through the financial test. 
The purpose of this requirement is to assure access to funds in the 
event of bankruptcy. The Agency is concerned that without a domestic 
asset requirement, it could experience difficulty in accessing funds of 
bankrupt firms whose assets are located outside of the United States.
    When the Agency proposed revisions to the subtitle C corporate 
financial test in the July 1, 1991, notice, at 56 FR 30201, the Agency 
did not propose revisions to the domestic asset requirement portion of 
that financial test. However, commenters on that proposal argued that 
the domestic asset requirement should be revised, as it unnecessarily 
limits the use of the test.
    In response to comment received on the July 1 notice, the Agency is 
proposing a revised domestic asset requirement for subtitle C. The 
Agency is proposing that corporations using the financial test be 
required to have assets in the U.S. at least equal to the sum of all 
environmental obligations assured by a financial test. This approach is 
consistent with the domestic asset requirement proposed in today's 
corporate financial test for subtitle D. The Agency solicits comment on 
its proposal to modify the subtitle C domestic asset requirement.

VI. Analysis Supporting This Proposed Rule

    The discussion below describes the analysis conducted by the Agency 
to develop the ratio alternative, minimum net worth requirement, and 
domestic asset requirement of this proposed corporate financial test. 
These provisions, which are proposed in this notice for use under the 
subtitle D program, also were proposed by the Agency on July 1, 1991, 
for use under the subtitle C program (56 FR 30201). In conducting 
analysis to support today's proposal, the Agency relied in large part 
on analysis conducted in support of the July 1, 1991, subtitle C 
rulemaking. This section of the preamble discusses the subtitle C 
analysis, and additional analysis conducted to support development of 
this proposal.
    For a more detailed description of the subtitle C analysis, the 
reader can refer to the preamble of the July 1, 1991, proposal (56 FR 
30201), and to the Background Document supporting the July 1 proposal, 
which can be found in the docket for that rulemaking (Docket No. F-91-
RCFP-FFFFF). For a more detailed description of the analysis to support 
this subtitle D corporate financial test proposal, the reader can refer 
to the Background Document for today's rule, which can be found in the 
docket for this proposal.

A. Development of the Subtitle C Corporate Financial Test

    As was discussed above, on July 1, 1991, the Agency proposed 
revisions to the subtitle C corporate financial test. At that time, the 
Agency conducted analysis using the following approach.
    First, the Agency examined whether the test should include a 
minimum net worth requirement. Second, the Agency developed various 
financial tests and analyzed their performance in discriminating 
between bankrupt and viable firms. Finally, the Agency evaluated those 
tests that best discriminated between viable and bankrupt firms 
according to a ``least cost'' criterion, and selected a financial test. 
Each of these analytical steps is described below.
1. Minimum Net Worth Requirement
    In developing the subtitle C corporate financial test, the Agency 
determined that a minimum net worth requirement was an important 
element of the test. First, the Agency was concerned that, because of 
their magnitude, the costs of closure and post-closure care could 
themselves cause smaller firms to go bankrupt. In addition, the need 
for a minimum net worth requirement was supported by analysis. The 
Agency found significantly higher bankruptcy rates for firms with a net 
worth less than $10 million. For example, firms with less than $10 
million in net worth failed four times more frequently than firms with 
greater than $10 million in net worth. Based on the above, the Agency 
decided to propose a minimum net worth requirement.
    To determine the threshold for this minimum net worth requirement, 
the Agency analyzed public and private costs associated with different 
thresholds. The Agency chose $10 million as the threshold because the 
analysis demonstrated that although a higher threshold would result in 
savings in public costs, those savings would not offset the additional 
costs to the regulated community of obtaining alternative financial 
assurance mechanisms.
2. Develop and Analyze Alternative Financial Tests
    The Agency first conducted a search of financial literature and 
identified possible financial ratios typically used for bankruptcy 
prediction. In addition to financial ratios, the Agency selected a 
variety of other financial measures, such as multiples requirements for 
net worth and net working capital (i.e., one through six times the size 
of the financial obligation) and ``additive'' requirements, which 
required firms to have a certain level of net worth (in addition to the 
minimum net worth requirement of $10 million) based on the amount of 
costs they wished to cover with the test.
    The Agency then evaluated the performance of these individual 
financial measures in discriminating between viable and bankrupt firms. 
Using samples of bankrupt and non-bankrupt firms, the Agency evaluated 
their ability to ``pass'' non-bankrupt firms capable of meeting their 
financial assurance obligations, and, at the same time, ``fail'' 
bankrupt firms that would enter bankruptcy without the means to meet 
those obligations. Each financial measure was evaluated using two 
performance measures:

    Availability (A): Measured as the percentage of total financial 
assurance obligations facing non-bankrupt firms with over $10 
million in net worth that can be covered using a particular 
financial measure or financial test.
    Misprediction (M): Measured as the percentage of total financial 
assurance obligations facing bankrupt firms that can be covered by 
bankrupt firms using the financial test.

    Those individual financial measures that performed relatively well 
at differentiating between the two samples had a high differential 
between the availability (A) and misprediction (M) measures; i.e., they 
allow viable firms to cover a relatively large percentage of 
obligations and, at the same time, screen out a large share of 
obligations of bankrupt firms. Those measures that performed relatively 
poorly had about the same availability to viable firms and bankrupt 
firms; i.e., they allowed bankrupt and non-bankrupt firms to cover a 
similar percentage of obligations. In some cases, poorly-performing 
measures had a negative differential--they allowed bankrupt firms to 
cover a higher percentage of obligations than non-bankrupt firms.
    The Agency's analysis of ratio measures found that profitability 
ratios, which measure a firm's net income or cash flow in relation to 
firm size (e.g., cash flow/total liabilities) and leverage ratios, 
which measure a firm's debt in relation to firm size (i.e., total 
liabilities/net worth) were particularly good at discriminating between 
bankrupt and non-bankrupt firms.
    The Agency then combined various profitability and leverage ratios, 
which had performed well at distinguishing between bankrupt and non-
bankrupt firms, to form alternative financial tests. A variety of 
possible multiple and additive requirements for net worth were then 
added to each combination of financial ratios.
    The process described above led to the development of over 500 
``candidate'' alternative financial tests. These candidate financial 
tests were then evaluated in a similar manner against the samples of 
bankrupt and non-bankrupt firms to determine their ability to pass non-
bankrupt firms capable of meeting their financial assurance obligations 
(availability or ``A'') and their ability to screen out bankrupt firms 
that would enter bankruptcy without the means to meet those obligations 
(misprediction or ``M''). From these candidates, ``dominant'' tests 
were selected, i.e., tests with the highest ability to pass non-
bankrupt firms for given levels of bankruptcy misprediction.
    The Agency then calculated the public and private cost of each 
``dominant'' test. The Agency defined public costs as the costs to the 
public sector of paying for financial assurance obligations for firms 
that pass the test but later go bankrupt without funding their 
obligations, and private costs as the cost to viable firms of obtaining 
alternative financial assurance mechanisms when they cannot pass the 
test. The amount of public and private costs associated with a 
particular test depends on the test's performance in terms of its 
availability to viable firms and its ability to screen out bankrupt 
firms.
3. Select a Financial Test for Proposal
    The Agency then identified a set of low-cost tests, and selected a 
test from that group for proposal. The Agency based its selection on 
policy considerations as well as the total costs of the financial 
tests. The Agency took this approach, rather than select the lowest 
cost test, because several tests had very similar total costs but 
different balances between public and private costs. Using this 
modified cost-effectiveness approach, the Agency was able to consider 
the balance of public and private costs among tests of approximately 
equal total costs.
    Exhibit 1 presents total public and private costs of the top two 
tests identified. Test 94 was the lowest-cost test analyzed, but the 
Agency proposed Test 902 in the July 1, 1991, rule for several reasons. 
First, Test 94 included a tax rate adjustment (FR) in the cash flow 
ratio which may change over time, thus making it a more difficult test 
to implement and verify. (The estimate shown in Exhibit 1 is that all 
firms are subject to a 34 percent corporate tax rate). In contrast, 
Test 902 required a cash flow ratio adjusted by a set value of $10 
million,1 rather than by a tax adjusted cost estimate. Second, 
Test 902 required a net worth of $10 million plus the amount of the 
cost to be assured (an additive requirement), whereas Test 94 required 
that the net worth be at least $10 million and that it be at least the 
amount of the cost to be assured. The Agency believed that the net 
worth additive requirement of Test 902 would ensure that a firm has net 
worth sufficient to cover its financial assurance obligations and has 
an additional $10 million in net worth to cover other debts and 
obligations as necessary. Finally, Test 902 had a different balance of 
public and private costs than Test 94. Because it is less available to 
firms, it had higher private costs than Test 94. However, the 
substantial improvement in bankruptcy screening (lower misprediction, 
or ``M'') led to far lower public costs than Test 94, so that the total 
costs were close to the total costs of Test 94.
---------------------------------------------------------------------------

    \1\The Agency analyzed many cash-flow ratios, some of which 
subtracted a constant amount (e.g., $5 million, $10 million, $15 
million), others of which, like the ratio in Test 94, subtracted 
variable amounts. Of the ratios that subtracted a constant amount, 
this ratio, which subtracted $10 million, was the most effective in 
reducing public and private costs.

              Exhibit 1.--Results of Alternative Financial Tests for Closure and Post-Closure Care              
                                             [Dollars in thousands]                                             
----------------------------------------------------------------------------------------------------------------
                                                                             Private       Public               
 Test                           Test requirements                             costs        costs     Total costs
----------------------------------------------------------------------------------------------------------------
94...  Cashflow--(.66 x FR)/total liabilities greater than .05...........       $2,868      $15,408      $18,277
       OR                                                                                                       
       Total liabilities/net worth less than 2.5                                                                
       AND                                                                                                      
       Net worth at least 1 x closure and post-closure care cost estimate                                       
       AND                                                                                                      
       Net worth of at least $10 million.................................                                       
902..  Cashflow--$10 million/total liabilities greater than .10..........       12,075        6,898       18,972
       OR                                                                                                       
       Total liabilities/net worth less than 1.5                                                                
       AND                                                                                                      
       Net worth of at least $10 million plus the amount of closure and                                         
        post-closure care cost estimate                                                                         
----------------------------------------------------------------------------------------------------------------

B. The Subtitle D Corporate Financial Test Analysis

    As was discussed above, the approach used by the Agency to evaluate 
alternative subtitle D financial tests was consistent with the 1991 
subtitle C analysis. However, because candidate measures for the 1991 
subtitle C analysis were assembled from a thorough review of available 
research on bankruptcy predictors, the Agency decided that additional 
research was not likely to identify any new candidate measures. 
Therefore, the Agency did not consider it necessary to repeat the 
process of assembling and testing candidate financial measures, and 
combining the most promising candidate measures into alternative 
financial test configurations.
    Instead, the Agency used the alternative financial tests identified 
in the subtitle C analysis as the starting point for the subtitle D 
analysis. The Agency then developed firm samples and cost estimates for 
the subtitle D program, and proceeded to evaluate those candidate 
financial tests using basically the same procedure used for subtitle C, 
with minor modifications.
1. Firm Samples
    The Agency identified 16 non-bankrupt firms (12 public and 4 
private) that own or operate MSWLFs. One of the private firms, which 
appeared to be quite small, was dropped from the sample for lack of 
financial data. Two of the remaining private firms were deleted because 
they had tangible net worth less than $10 million. The final non-
bankrupt firm sample, then, consisted of 13 firms--12 public and one 
private.2
---------------------------------------------------------------------------

    \2\The Agency believes that the same policy considerations 
discussed above for subtitle C compel use of a $10 million net worth 
requirement for subtitle D. In addition, the Agency conducted 
analysis to determine whether a lower net worth requirement would 
significantly increase the amount of financial assurance that could 
be covered by the subtitle D financial test. The Agency found that 
the 3 small firms excluded by the minimum net worth requirement 
owned only 12 MSWLFs, which were less than half the size of the 
landfills owned and operated by larger firms. Therefore, the Agency 
concluded that a lower minimum net worth requirement would not 
significantly increase the availability of the subtitle D corporate 
financial test. The final non-bankrupt firm sample, then, consisted 
of 13 firms--12 public and one private.
---------------------------------------------------------------------------

    The bankrupt firm sample used in the subtitle C corporate financial 
test analysis was also used for the subtitle D financial test analysis. 
That sample consisted of 31 firms, which were either known to operate 
hazardous waste facilities or were likely to do so. The Agency believed 
that this was the best sample of bankrupt firms available for the 
subtitle D analysis for several reasons. First, owning and operating 
MSWLFs entails a capital-intensive, long-term investment in engineering 
and construction for industrial activity, similar to the industrial 
activities of many firms in the subtitle C universe. Second, firms in 
the MSWLF industry, like firms in the subtitle C universe, are subject 
to environmental regulations and associated compliance costs. Third, 
the Agency could not identify bankruptcies of MSWLF firms, as they have 
not been subject to Federal regulatory requirements and, therefore, 
have not been identified like subtitle C facilities, which were 
required to notify EPA of their existence in 1980, thus providing the 
Agency with historical data.
2. Cost Estimates
    a. Closure and Post-Closure Care. The Agency's derived estimates of 
closure and post-closure care costs from data provided by the 
Regulatory Impacts Analysis (RIA) of the proposed subtitle D MSWLF 
criteria (56 FR 50978).
    Because the analysis predated the effective date of the landfill 
criteria, the Agency did not have site-specific cost estimates for 
firms that own or operate MSWLFs. Therefore, the Agency estimated the 
financial assurance obligations for each firm in the non-bankrupt firm 
sample, based on the number and size of landfills owned or operated by 
each firm, and the Agency's estimate of closure and post-closure care 
costs per landfill.
    b. Corrective Action. The Agency took a different approach to 
analyzing the impact of corrective action costs on the performance of 
alternative financial tests. As in the case of closure and post-closure 
care, the Agency did not have site-specific data on the cost of 
corrective action. However, unlike the costs of closure and post-
closure, corrective action costs are not certain to occur. In addition 
to not having site-specific cost data, the Agency also did not have 
data on the probability of corrective action being necessary. 
Therefore, the Agency did not attempt to estimate site-specific costs 
to analyze the impact of corrective action costs on the performance of 
alternative financial tests; rather, the Agency conducted a sensitivity 
analysis, which is described later in this preamble.
3. Results of Evaluation of Candidate Financial Tests for Closure and 
Post-Closure Care
    The Agency calculated the public and private costs for the 
alternative financial test configurations, and selected a set of 
dominant tests.\3\ Table 2 shows the results for the lowest cost tests.
---------------------------------------------------------------------------

    \3\Note that in the 1991 subtitle C analysis, the alternative 
financial tests were evaluated against the firm samples to establish 
a set of dominant tests, and the sum of public and private costs was 
then calculated for each dominant test. However, in the subtitle D 
analysis, the sample size of non-bankrupt firm sample was so small 
(13 firms) that directly calculating the sum of the public and 
private costs for each of the alternative test configurations was 
more analytically efficient. 

        Table 2.--Financial Tests With Lowest Public and Private Costs for Closure and Post-Closure Care        
                                              [Dollars in millions]                                             
----------------------------------------------------------------------------------------------------------------
                                                                             Private       Public    Total costs
 Test                             Requirements                                costs        costs     (thousands)
                                                                           (thousands)  (thousands)             
----------------------------------------------------------------------------------------------------------------
\1\56                                                                                                           
 2...  Total Liabilities/Net Worth less than 1.5.........................        $17.4         $8.8        $26.2
       OR                                                                                                       
       (Cash Flow--$10 million)/Total Liabilities greater than 0.1                                              
       AND                                                                                                      
       Net worth of at least $10 million plus the amount of closure and                                         
        post-closure care cost estimate                                                                         
130..  Total Liabilities/Net Worth less than 1.5.........................         17.4          8.8         26.2
       OR                                                                                                       
       (Cash Flow--$10 million)/Total Liabilities greater than 0.1                                              
       AND                                                                                                      
       Net worth of at least the amount of closure and post-closure care                                        
        cost estimate                                                                                           
58...  Total Liabilities/Net Worth less than 1.5.........................          6.1         10.8         16.9
       OR                                                                                                       
       (Cash Flow--$10 million)/Total Liabilities less than 0.1                                                 
       AND                                                                                                      
       No minimum net worth requirement                                                                         
----------------------------------------------------------------------------------------------------------------
\1\Subtitle D Test 562 is identical to Subtitle C Test 902, which was selected for proposal under that program. 

    Though Test 58 was the lowest cost test, the Agency did not select 
it for proposal because that test did not include a minimum net worth 
requirement beyond the $10 million. The Agency believes that an 
additional net worth requirement that is related to the costs to be 
assured is important to assure that the firm's environmental costs will 
not increase the probability of firm failure. For example, if a firm 
had a net worth of $10 million, but closure and post-closure costs of 
$100 million, those costs would, in all likelihood, cause the firm to 
enter bankruptcy. Thus, the Agency eliminated Test 58 from 
consideration and considered for proposal only those financial tests 
that had a minimum net worth requirement that considered the size of 
the obligation to be assured.
    Tests 562 and 130 are identical except for the minimum net worth 
requirement. Test 130 requires that the firm's minimum net worth be at 
least $10 million and that it be at least the amount of the closure and 
post-closure care cost estimate. Test 562 requires a minimum net worth 
be equal to $10 million plus the closure and post-closure care cost 
estimate. The Agency selected Test 562 for proposal for several 
reasons.
    First, the Agency believes that requiring a $10 million minimum net 
worth requirement in addition to net worth equal to the firm's assured 
costs protects against environmental obligations themselves causing 
bankruptcy. Second, there was no difference in the availability of Test 
130 and Test 562, so there was no compelling reason to select Test 130. 
Finally, selection of Test 562, which is identical to the corporate 
financial test proposed for subtitle C follows the Agency's policy of 
maintaining consistency among programs wherever possible. 
4. Results of Sensitivity Analysis To Determine Effects of Corrective 
Action Costs on Test Performance 
    As was mentioned above, the Agency conducted a sensitivity analysis 
to determine whether the costs of corrective action would affect the 
performance of the candidate financial tests. This analysis evaluated 
the alternative tests for closure, post-closure care, and corrective 
action costs under three scenarios--corrective action costs equal to 
50%, 100%, and 200% of the costs of closure and post-closure. Under 
each scenario, Test 130 and Test 562 were the lowest cost tests with a 
minimum net worth requirement related to the size of obligation to be 
assured. 
5. Statement of Accounting Standards Number 106 (FASB 106) 
    Concerns have been raised by some members of the regulated 
community that the December 1990 Statement issued by the Financial 
Accounting Standards Board, entitled ``Employers' Accounting for 
Postretirement Benefits Other Than Pensions (OPEB)'' (FASB 106), 
adversely impacts their ability to pass the Agency's corporate 
financial test for their environmental obligations.
    While the Security and Exchange Commission (SEC) is ultimately 
responsible for specifying Generally Accepted Accounting Principles 
(GAAP) for publicly-owned firms, the SEC has informally followed 
policies developed by the FASB, an independent private organization 
that is funded by various professional accounting associations.
    In this case, according to FASB 106, employers who do not already 
account for these benefits as required by the Statement must do so for 
fiscal years beginning after December 15, 1992 (This requirement is 
delayed for certain small, non-public employers to fiscal years 
beginning after December 15, 1994). FASB 106 allows employers the 
option of accounting for these benefits in one year (immediate 
recognition of OPEB) or over a consecutive number of years (delayed 
recognition of OPEB).
    These members of the regulated community that are concerned about 
FASB 106 have requested that for Security and Exchange Commission 
purposes, they be allowed to continue to use the immediate recognition 
method, but for purposes of the Agency's financial test, they be 
allowed to use the delayed recognition method. Since both the immediate 
and delayed recognition of these obligations are allowed by the FASB 
106 rule, the Agency believes there is enough flexibility in the 
regulations to allow recognition of OPEB benefits in the manner 
described above. A more detailed description of EPA's interpretation of 
the federal regulations governing the corporate financial test within 
the context of FASB 106 can be found in the docket in support of this 
proposal. (See Letter to Torger Dahl of Eastman Kodak Company from 
Michael H. Shapiro, Director of the Office of Solid Waste.) The Agency 
solicits comment on whether the subtitles D and C corporate financial 
tests should be revised to clarify how owners and operators can account 
for FASB 106 when using the financial test to demonstrate financial 
responsibility for their environmental obligations.
6. Domestic Asset Requirement
    The Agency is proposing that all firms using the financial test 
have assets in the United States at least equal to the sum of the costs 
they seek to assure through the financial test. This domestic asset 
requirement is intended to ensure that the Agency has access to funds 
in the event of bankruptcy. Without this requirement, the Agency could 
experience substantial difficulty in accessing funds of bankrupt firms 
that have their assets outside of the United States.
    The domestic asset requirement proposed for the subtitle D 
corporate owners and operators of MSWLFs is consistent with revisions 
to the domestic asset requirement of the subtitle C corporate financial 
test proposed today (see section V. of this preamble for further 
discussion).

VII. National Solid Wastes Management Association (NSWMA) Petition

A. Discussion of the Petition

    On February 16, 1990, NSWMA submitted a rulemaking petition to the 
Agency. The Agency has addressed many of the concerns raised in the 
petition in a July 1, 1991 proposed rule (56 FR 30201) and a September 
16, 1992 final rule (57 FR 42832). While today's proposed rule 
addresses two more issues raised in this petition, it does not 
represent the full Agency response to NSWMA's petition. The Agency 
continues to examine the concerns raised in NSWMA's petition.

B. The Meridian Test

    As part of its analysis, the Agency evaluated the test developed by 
the Meridian Corporation, which was submitted to EPA on February 16, 
1990, along with a rulemaking petition, by the National Solid Wastes 
Management Association (NSWMA). Using the methodology described above, 
the Agency found that the test was not as effective at minimizing 
public and private costs as the test proposed on July 1, 1991. As a 
result, the Agency has not proposed the test developed by Meridian 
Corporation for further analysis. The NSWMA petition, the test 
developed by the Meridian Corporation, and the Agency's analysis of 
that test can be found in the docket in support of this proposal. The 
Agency will consider and respond to any comments it receives on the 
Meridian financial test in evaluating the revisions to the corporate 
financial test for subtitle C.

C. Request for Comment on Allowing Owners and Operators to Discount 
Costs

    The financial assurance requirements in many EPA program areas 
(e.g., RCRA subtitles C and D, TSCA PCBs) require owners and operators 
to calculate cost estimates in current dollars, and aggregate these 
estimates (even though these costs may be incurred many years in the 
future). Owners must obtain a financial responsibility instrument for 
at least the amount of this aggregated cost estimate. The RCRA 
regulations currently do not allow owners and operators to adjust this 
aggregated cost estimate to reflect the fact that these activities are 
scheduled to occur in future years.
    The Agency has received many requests to allow owners and operators 
to meet the financial assurance requirements based on the present value 
of these future obligations. In a rulemaking petition submitted on 
February 16, 1990, the National Solid Wastes Management Association 
(NSWMA) recommended that the Agency allow firms to use a present value 
based on a discount rate to estimate their costs for post-closure care 
and for the extended care portion of corrective action. (The NSWMA 
petition can be found in the docket of today's rulemaking.) In 
addition, the Agency has received public comment making similar 
requests during the development of other financial-responsibility-
related rules. In the preamble to the proposed local government 
financial test, the Agency solicited comment on the whether to allow 
owners and operators to discount costs associated with MSWLFs (see 58 
FR 68353 at 68361, December 27, 1993). The Agency recognizes that this 
is an issue of interest to many parties, and has reviewed and 
considered all comments received to date.
    In general, the argument presented to the Agency has been, because 
these expenditures are scheduled to occur in the future (often many 
years in the future), a financial instrument for less than the 
aggregate costs (i.e. the ``present value'' of the aggregated costs) 
would pay off these expenditures in the future.4 This is the case 
because there is a time dimension to the value of a monetary or 
financial instrument--$100 in hand today is worth more than a 
(guaranteed) promise to pay $100 in ten years. One hundred dollars 
invested today, for example, in a ten-year Treasury bond paying at an 
interest rate of 7 percent will pay back $197 ten years from now, 
assuming that interest is compounded continually.
---------------------------------------------------------------------------

    \4\In order to make comparisons between alternative financial 
instruments on capital investment decisions involving different 
streams of payments over time, financial analysts, economists, etc., 
calculate the ``present value'' of the alternatives. This method 
involves calculating in terms of current dollars using the interest 
rate--or discount rate--present value of a promised future receipt 
(or expenditure). For example, at a 7 percent interest rate, an 
investor would be indifferent between receiving $100 five years from 
now or receiving $71.30 today. The present value, then of the 
promise to pay $100 in five years (at a discount rate of 7 percent) 
would be $71.30. In much the same way, if the Agency allowed owners 
and operators to discount their future costs when they demonstrated 
financial responsibility, an owner or operator who had a $10 million 
closure scheduled to occur 20 years in the future could demonstrate 
financial responsibility for as little as $2.6 million today, 
assuming they could invest that amount at the same 7% interest (or 
discount ) rate described above. The effect of discounting becomes 
more pronounced as the time period and discount rate increase.
---------------------------------------------------------------------------

    The Agency has not proposed to allow owners and operators to 
discount costs because the Agency remains unconvinced that by doing so 
it would assure that adequate funds will be available in a timely 
manner to perform required activities in the event that the owner or 
operator is unable or unwilling to perform these activities.
    First, the Agency is concerned that for an approach based on 
discounting to be effective, it is important that the owner or operator 
be able to predict with certainty when the costs will incur. For 
example, an owner or operator who estimates that the closure costs of 
its MSWLF will be $10 million to occur 20 years in the future would 
only have to demonstrate financial responsibility for $2.6 million 
today, assuming a 7 percent discount rate. If that MSWLF unexpectedly 
has to close, it may not have sufficient resources to properly complete 
all closure activities since the amount of financial responsibility 
could be substantially less than the actual need.
    Despite these concerns, the Agency is interested in allowing owners 
and operators to discount costs under the subtitle D program wherever 
it can do so and still assure that sufficient resources will be 
available to perform required activities. The Agency believes that 
discounting may be more applicable for some activities than others. For 
example, where the cost of an activity is known, the timing of the 
activity can be predicted with a greater degree of certainty, or where 
the activity takes place over an extended time period, it may be 
appropriate to discount costs.
    Although current regulations require owners to have the financial 
resources to carry out all closure and post-closure activities in one 
year, some activities, such as post-closure groundwater monitoring, can 
only be done over several decades. Therefore, even if a landfill must 
close unexpectedly, certain activities (like post-closure care) and the 
associated costs will still occur over a number of years in the future. 
EPA could allow owners to discount these costs in computing their 
obligations. However, where the timing and costs associated with an 
activity are not known, discounting may not be appropriate.
    Because of its interest in allowing owners and operators to 
discount costs, and because of its concerns about allowing them to do 
so, the Agency again solicits comment on the practice of discounting, 
and how it might be applied to the subtitle D program. Members of the 
public who submitted comments on discounting during the comment period 
of the local government financial test need not submit those comments 
again. If the Agency modifies the subtitle D regulations to allow 
owners and operators to discount costs under that program, the Agency 
will consider all comments related to discounting that were submitted 
to the docket for this proposal during the public comment period and to 
the docket for the local government financial test proposal during the 
comment period for that rulemaking.
    The Agency specifically requests comment and supporting information 
on the following and on any other issues that commenters identify 
regarding discounting for MSWLF financial responsibility requirements:
    (1) Selection of a discount rate. Possible options include short- 
or long-term interest rates, private, municipal or Treasury bonds, or 
some other measure of interest rate.
    (2) Selection of a method that provides adequate assurance that 
funds will be available in the event of unexpected closure.
    (3) Selection of a maximum time period over which costs may be 
discounted, e.g., 5, 10, 20, or 50 years.
    (4) Selection of activities that may be appropriate for employing 
discounting, e.g., post-closure care when the costs and time period for 
performing this activity may be estimated with reasonable accuracy.
    (5) Selection of a method that minimizes the potential complexities 
involved in administering and enforcing a program that allows 
discounting of costs.
    Commenters should note that this request for comment is limited to 
whether discounting should be allowed for MSWLF financial assurance, 
and is not intended to open for comment other financial assurance 
regulations.

VIII. State Program Approval--Subtitle D

    Section 4005(c) of RCRA requires that each State adopt and 
implement a ``permit program or other system of prior approval and 
conditions'' adequate to assure that each facility that may receive 
household hazardous waste or small quantity generator waste will comply 
with the revised MSWLF criteria. Each state must adopt and implement a 
permit program not later than 18 months after October 9, 1991. EPA is 
required to ``determine whether each State has developed an adequate 
program'' pursuant to section 4005(c).
    EPA plans to propose a State/Tribal implementation rule which will 
establish adequacy determination requirements and procedures for State 
subtitle D permit programs, including submission of a MSWLF permit 
program application. EPA also plans to propose to extend eligibility 
for subtitle D permit program approval to Indian Tribes. The statute, 
however, does not require these rules to be in place before EPA 
assesses the adequacy of any State or Tribal program.
    As part of these rules, the Agency plans to include procedures for 
submitting revised applications for State and Tribal program adequacy 
determinations should a State or Tribe revise its permit program once 
deemed adequate and the appropriate Regional Administrator determines 
that a revised application is necessary. Program revision may be 
necessary when the pertinent Federal statutory or regulatory authority 
is changed, when State or Tribal statutory or regulatory authority or 
relevant guidance changes, or when responsibility for the State or 
Tribal program is shifted within the lead agency or to a new or 
different State or Tribal agency or agencies.
    A State or Tribe that receives permit program approval prior to the 
final promulgation of today's rule and later elects to adopt the 
financial test and local government guarantee mechanisms should work 
with its respective Regional EPA office as it proceeds to make changes 
to its permit program. EPA does not interpret the statute to require 
that each and every program change a State or Tribe makes will require 
a revised permit program application. Rather, only certain changes that 
raise issues warranting a detailed review by EPA and an opportunity for 
public comment will necessitate a revised application. EPA believes 
that State and Tribal compliance with today's proposal will, in most 
cases, not require a revised permit program application, since this 
rule merely provides additional options for demonstrating financial 
assurance. Furthermore, States and Tribes that have adopted financial 
assurance requirements without this local government test and guarantee 
are not required to take any action and may elect to retain only their 
current options since this proposal simply expands the number of 
options available to owners and operators for demonstrating financial 
assurance.

IX. Implementation--Subtitle D

    As stated above, today's proposal would amend part 258 by adding 
additional options for corporations to use when demonstrating financial 
assurance for the costs of closure, post-closure care and clean-up of 
known releases. States and Tribes will not be required to include these 
options in their MSWLF programs, since they may choose to establish 
their own financial assurance programs as long as they meet the 
financial assurance requirements in Federal criteria. EPA will be able 
to approve the financial assurance portion of a State or Tribe's 
program so long as it includes at least one of the options promulgated 
in October, 1991, or added by today's proposal (if promulgated).
    As a matter of Federal law, these proposed tests (if promulgated) 
will be potentially available in all States and all Tribal 
jurisdictions. EPA cautions owners and operators that wish to use the 
options in the Federal program that they should look at the options 
available under State or Tribal law. If the State or Tribe's rules do 
not include the option that the owner or operator wishes to use, the 
owner or operator would run the risk of being out of compliance with 
State or Tribal law. State and Tribal laws for MSWLFs are fully 
effective even when not approved by EPA.
    In unapproved States or Tribes, if State or Tribal law did not 
preclude the use of options proposed today (either because it did not 
include any financial assurance requirements, included only a general 
requirement that left the choice of mechanism to the discretion of the 
owner or operator, or included mechanisms resembling those proposed 
today) an owner or operator would be able to use the corporate test or 
guarantee described in today's proposal (if promulgated) to satisfy 
both State or Tribal and Federal law.
    EPA notes that States or Tribes seeking approval for the financial 
assurance portion of their MSWLF program or wishing to modify an 
already approved program would have flexibility in adopting Federally 
promulgated standards. The State or Tribe could simply adopt the 
Federal standard or could adopt a mechanism that meets the five 
performance standards detailed in the October 9, 1991 final criteria 
rule. In this case, the mechanism could be used by owners or operators 
for demonstrating financial responsibility for their MSWLF obligations 
in that State or Tribe. The five criteria that the financial mechanism 
would need to meet are the following: (1) 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; (2) ensure 
that funds will be available in a timely fashion when needed; (3) 
guarantee the availability of the required amount of coverage from the 
effective date of these requirements or prior to the initial receipt of 
waste, whichever is later, until the owner or operator is released from 
financial assurance requirements under Secs. 253.32 (f), (g), (h); (4) 
provide flexibility to the owner or operator for demonstrating 
compliance with financial assurance requirements; and (5) be legally 
valid, binding, and enforceable under State and Federal law.
    As a result, while the Agency is developing financial tests that 
are designed to meet these performance criteria (the financial test 
proposed in this Federal Register and the financial test proposed on 
December 27, 1993 (58 FR 68353)), approved States and Tribes could 
develop their own financial tests that could be used by owners and 
operators of MSWLFs within those States and Tribes for demonstrating 
financial responsibility as long as those tests are determined to have 
met the performance standards. (For a discussion of the effect of EPA's 
approval of a State or Tribal program on the Federal regulations, see 
56 FR 50995.)
    Owners and operators who can use the options in today's proposal 
under State or Tribal law would be required to maintain appropriate 
documentation of the mechanism in the facility's operating record. They 
would not be required by Federal law to submit that documentation to 
the State or Tribe, but only to notify the State or Tribal Director 
that the required items have been placed in the operating record. 
Owners and operators using the financial test or guarantee would also 
be required to update all required financial test information on an 
annual basis, and retain this information in their operating records. 
In addition, an owner or operator (or guarantor) that becomes unable to 
meet the financial test criteria would be required to notify the State 
or Tribal Director and establish alternate financial assurance within 
specified deadlines. Finally, in order to cancel a guarantee, the 
guarantor would have to notify both the State or Tribal Director and 
the owner or operator at least 120 days prior to cancellation.
    The Agency believes that most Tribes have an accounting structure 
similar or identical to those of most local governments. Tribes that 
meet the requirements of the local government financial test would be 
eligible to use that financial test to demonstrate financial 
responsibility for their subtitle D obligations to the extent that they 
meet the provisions of that test. However, the Agency recognizes that 
there may be Tribes and local government units that use an accounting 
system similar or identical to those of most corporations. Those Tribes 
and local government units would be eligible to use this proposed 
corporate financial test to demonstrate financial responsibility for 
their subtitle D obligations to the extent that they meet the 
requirements of this proposal.

X. State Authorization--Subtitle C

    On July 1, 1991, the Agency proposed revisions to the subtitle C 
corporate financial test (56 FR 30201). In that proposal, the Agency 
considered the effect of those proposed revisions on State 
Authorization based on the entire test, rather than on the individual 
components of the entire financial test (see 56 FR 30214 and 30215). 
This proposal would modify one provision of that July 1, 1991 proposed 
rule. Specifically, this proposal would modify the domestic assets 
requirement of the financial test contained in Secs. 264.143(f)(1) 
(i)(D) and (ii)(D); 265.143(e)(1) (i)(D) and (ii)(D); 264.145(f)(1) 
(i)(D) and (ii)(D); 265.145(e)(1) (i)(D) and (ii)(D); 264.147(f)(1) 
(i)(D) and (ii)(D); and 265.147(f)(1) (i)(D) and (ii)(D) and the 
corresponding revisions to the financial test instruments at 
Sec. 264.151 (f) and (g). This proposed change of the domestic asset 
requirement would not change the effect of State Authorization detailed 
in the July 1, 1991 proposed rule. As a result, if the Agency does 
promulgate a revised financial test under subtitle C, the effect on 
State Authorization would be based on the July 1, 1991 proposal, though 
a full discussion of the effect on State Authorization of the entire 
revised subtitle C corporate financial test will be contained in the 
final rule.

XI. Economic and Regulatory Impacts

A. Executive Order 12866

    Under Executive Order 12866, which was published in the Federal 
Register on October 4, 1993 (see 58 FR 51735), the Agency must 
determine whether a regulatory action is ``significant'' and, 
therefore, subject to OMB review and the requirements of the Executive 
Order. The Order defines ``significant regulatory action'' as one that 
is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Under the terms of Executive Order 12866, OMB has notified EPA that 
it considers this a ``significant regulatory action'' within the 
meaning of the Executive Order. EPA has submitted this action to OMB 
for review. Changes made in response to OMB suggestions or 
recommendations are documented in the public record for this rulemaking 
(see Docket #F-94-FTMP-FFFFF).
    The Agency conducted an analysis to estimate the costs that would 
be avoided by corporations if this corporate financial test were 
available to them. Since corporations would be able to use the 
financial test for all or part of their subtitle D obligations, 
corporations would save the cost of obtaining a third-party instrument 
for those portions of their obligations. The Agency estimates that the 
corporate financial test and guarantee mechanisms would save 
corporations $45 million annually. In performing this analysis, the 
Agency assumed that the 1991 data used to estimate the number of 
MSWLFs, the costs of closure and post-closure care for each of the 
categories of MSWLFs, and the number of corporations are held constant. 
The financial data of the corporations are also assumed not to have 
changed since 1991. The Agency also assumed that corporations had, as 
their only environmental obligations, the costs of closure, post-
closure care of their MSWLFs. The Agency further assumed that the cost 
of obtaining a third-party financial instrument, such as a letter of 
credit or surety bond, would be 1.5 percent of the cost estimate of 
closure and post-closure care of the MSWLF. Finally, the Agency assumed 
that corporate parents would be willing to provide guarantees to their 
subsidiaries to the extent that they are able to provide those 
guarantees through the financial test. A full discussion of this 
analysis can be found in the docket for this rulemaking.
    The Agency believes that the information it had when it performed 
its analysis was the most current and the most complete at the time. 
While the Agency recognizes that changes have occurred in the subtitle 
D universe since 1991, it does not have information to quantify these 
changes. As a result, the Agency solicits the public for more current 
information that can be used to update its analysis. Further, the 
Agency solicits comment on the assumptions made in order to perform the 
analysis and solicits the public for information that supports or 
refutes these assumptions. A detailed analysis of the cost savings 
associated with this rule is available in the docket.

B. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. at the 
time an Agency publishes a proposed or final rule, it generally must 
prepare a Regulatory Flexibility Analysis that describes the impact of 
the rule on small entities, unless the Administrator certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. The Agency is aware of three companies that 
would be excluded from using this proposed financial test because their 
net worth is less than $10 million. Therefore, pursuant to 5 U.S.C. 
605b, we believe that this regulation will not have a significant 
impact on a substantial number of small entities.

C. Paperwork Reduction Act

    OMB approved the information collection requirements of the MSWLF 
criteria, including financial assurance criteria, under the provisions 
of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and assigned 
OMB control number 2050-0122. The burden estimate for the MSWLF 
financial assurance provisions included the burden associated with a 
landfill obtaining and maintaining any one of the allowable financial 
assurance instruments, including a financial test. The proposed 
revision to part 264 does not change the recordkeeping or reporting 
requirements for subtitle C facilities. The information collection 
requirements for financial assurance of subtitle C facilities are 
discussed and approved under OMB control number 2050-0120.
    The public may send comments regarding the burden estimate or any 
other aspect of this collection of information, including suggestions 
for reducing this burden to Chief, Information Policy Branch, 2136, 
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460; and to the Office of Information and Regulatory Affairs, Office 
of Management and Budget, 728 Jackson Place NW., Washington, DC 20503 
(marked ``Attention: Desk Officer for EPA'').

List of Subjects

40 CFR Part 258

    Environmental protection, Reporting and recordkeeping requirements, 
Waste treatment and disposal.

40 CFR Part 264

    Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 265

    Hazardous waste, Reporting and recordkeeping requirements.

    Dated: September 30, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, chapter I, title 40 of the 
Code of Federal Regulations is proposed to be amended as follows:

PART 258--CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS

    1. The authority citation for part 258 continues to read as 
follows:

    Authority: 42 U.S.C. 6907(a)(3), 6912(a), 6944(a), and 6949(c); 
33 U.S.C. 1345 (d) and (e).

    2. Section 258.74 is amended by adding paragraphs (e) and (g) to 
read as follows:


Sec. 258.74  Allowable mechanisms.

* * * * *
    (e) Corporate financial test. An owner or operator that satisfies 
the requirements of this paragraph may demonstrate financial assurance 
up to the amount specified herein:
    (1) Financial Component. (i) The owner or operator must satisfy one 
of the following three conditions:
    (A) A current rating for its most recent bond issuance 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
    (B) A ratio of less than 1.5 comparing total liabilities to net 
worth; or
    (C) A ratio of greater than 0.10 comparing the sum of net income 
plus depreciation, depletion and amortization, minus $10 million, to 
total liabilities.
    (ii) The tangible net worth of the owner or operator must be 
greater than the sum of the current closure, post-closure care, 
corrective action cost estimates and any other environmental 
obligations covered by a financial test plus $10 million.
    (iii) The owner or operator must have assets located in the United 
States amounting to at least the sum of current closure, post-closure 
care, corrective action cost estimates and any other environmental 
obligations covered by a financial test as described in paragraph 
(e)(3) of this section.
    (2) Recordkeeping and reporting requirements. (i) The owner or 
operator must place the following items into the facility's operating 
record:
    (A) A letter signed by the owner's or operator's chief financial 
officer that:
    (1) 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 264 and 265, if 
applicable;
    (2) Provides evidence that the firm meets the conditions of either 
paragraph (e)(1)(i) or paragraph (e)(1)(ii) of this section.
    (B) A copy of the independent certified public accountant's 
unqualified opinion of the owner's or operator's financial statements 
for the latest completed fiscal year except as provided in paragraph 
(e)(2)(i)(B)(1) of this section:
    (1) To be eligible to use the financial test, the owner's or 
operator's financial statements referenced in paragraph (e)(2) of this 
section must receive an unqualified opinion from the independent 
certified public accountant. An adverse opinion, disclaimer of opinion, 
or other qualified opinion will be cause for disallowance. The Director 
of an approved State may evaluate qualified opinions on a case by case 
basis and allow use of the financial test in cases where the Director 
deems that the matters which form the basis for the qualification are 
insufficient to warrant disallowance of the test. If the Director of an 
approved State does not allow use of the test, the owner or operator 
must provide alternate financial assurance as specified in this 
section.
    (2) [Reserved]
    (C) If the Chief Financial Officer's letter providing evidence of 
financial assurance includes financial data that are different from 
data in the audited financial statements referred to in paragraph 
(e)(2)(i)(B) of this section or any other audited financial statement 
or data filed with the SEC, a special report from the owner's or 
operator's independent certified public accountant to the owner or 
operator is required stating that:
    (1) He has compared 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; and
    (2) In connection with that examination, no matters came to his 
attention which caused him to believe that the data in the chief 
financial officer's letter should be adjusted.
    (ii) An owner or operator must place the items specified in 
paragraph (e)(2) of this section in the operating record and notify the 
State Director that these items have been placed in the operating 
record before the initial receipt of waste or before the effective date 
of this section, whichever is later, in the case of closure, post-
closure care, or no later than 120 days after the corrective action 
remedy has been selected in accordance with the requirements of 
Sec. 258.58.
    (iii) After the initial placement of items specified in paragraph 
(e)(2) of this section in the operating record, the owner or operator 
must update the information and place updated information in the 
operating record within 90 days following the close of the owner or 
operator's fiscal year. This information must consist of all three 
items specified in paragraph (e)(2) of this section.
    (iv) The owner or operator is no longer required to submit the 
items specified in paragraph (e)(2) of this section when:
    (A) He substitutes alternate financial assurance as specified in 
this section; or
    (B) He is released from the requirements of this section in 
accordance with Sec. 258.71(b), Sec. 258.72(b), or Sec. 258.73(b).
    (v) If the owner or operator no longer meets the requirements of 
paragraph (e)(1) of this section, the owner or operator must, within 
120 days following the close of the owner or operator'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 State Director that the owner or 
operator no longer meets the criteria of the financial test and that 
alternate assurance has been obtained.
    (vi) The Director of an approved State may, based on a reasonable 
belief that the owner or operator may no longer meet the requirements 
of paragraph (e)(1) of this section, require at any time the owner or 
operator to provide current financial test documentation as specified 
in paragraph (e)(2) of this section. If the Director of an approved 
State finds that the owner or operator no longer meets the requirements 
of paragraph (e)(1) of this section, the owner or operator must provide 
alternate financial assurance as specified in this section.
    (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'' 
referred to in paragraph (e)(1) of this section, the owner or operator 
must 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 144.62, 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.
* * * * *
    (g) Corporate Guarantee. (1) An owner or operator may meet the 
requirements of this section by obtaining a written guarantee. The 
guarantor must be the direct or higher-tier parent corporation of the 
owner or operator, a firm whose parent corporation is also the parent 
corporation of the owner or operator, or a firm with a ``substantial 
business relationship'' with the owner or operator. The guarantor must 
meet the requirements for owners or operators in paragraph (e) of this 
section and must comply with the terms of the guarantee. A certified 
copy of the guarantee must be placed in the facility's operating record 
along with copies of the letter from the guarantor's chief financial 
officer and accountants' opinions as specified in paragraph (e)(2) of 
this section. If the guarantor's parent corporation is also the parent 
corporation of the owner or operator, the letter from the guarantor's 
chief financial officer must describe the value received in 
consideration of the guarantee. If the guarantor is a firm with a 
``substantial business relationship'' with the owner or operator, this 
letter must describe this ``substantial business relationship'' and the 
value received in consideration of the guarantee.
    (2) The guarantee must be effective and all required submissions 
placed in the operating record before the initial receipt of waste or 
before the effective date of this section, whichever is later, 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 Sec. 258.58.
    (3) The terms of the guarantee must provide that:
    (i) If the owner or operator fails to perform closure, post-closure 
care, and/or corrective action of a facility covered by the guarantee, 
the guarantor will:
    (A) Perform, or pay a third party to perform, closure, post-closure 
care, and/or corrective action as required (performance guarantee); or
    (B) Establish a fully funded trust fund as specified in paragraph 
(a) of this section in the name of the owner or operator (payment 
guarantee).
    (ii) The guarantee will remain in force unless the guarantor sends 
prior notice of cancellation by certified mail to the owner or operator 
and to the State Director. Cancellation may not occur, however, during 
the 120 days beginning on the date of receipt of the notice of 
cancellation by both the owner or operator and the State Director, as 
evidenced by the return receipts.
    (iii) If a guarantee is cancelled, the owner or operator must, 
within 90 days following receipt of the cancellation notice by the 
owner or operator and the State Director, obtain alternate financial 
assurance, place evidence of that alternate financial assurance in the 
facility operating record, and notify the State Director. If the owner 
or operator fails to provide alternate financial assurance within the 
90-day period, the guarantor must provide that alternate assurance 
within 120 days, obtain alternative assurance, place evidence of the 
alternate assurance in the facility operating record, and notify the 
State Director.
    (4) If a corporate guarantor no longer meets the requirements of 
paragraph (e)(1) of this section, the owner or operator must, within 90 
days following the close of the guarantor's fiscal year, obtain 
alternative assurance, place evidence of the alternate assurance in the 
facility operating record, and notify the State Director. If the owner 
or operator fails to provide alternate financial assurance within the 
90-day period, the guarantor must provide that alternate assurance 
within 120 days following the close of the guarantor's fiscal year, 
obtain alternative assurance, place evidence of the alternate assurance 
in the facility operating record, and notify the State Director.
    (5) The owner or operator is no longer required to submit the items 
specified in paragraph (g)(1) of this section when:
    (i) The owner or operator substitutes alternate financial assurance 
as specified in this section; or
    (ii) The owner or operator is released from the requirements of 
this section in accordance with Sec. 258.71(b), Sec. 258.72(b), or 
Sec. 258.73(b).
* * * * *

PART 264--STANDARDS FOR OWNERS OR OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924 and 6925.

    3. Section 264.143 is amended by revising paragraphs (f)(1)(i)(D) 
and (f)(1)(ii)(D) to read as follows:


Sec. 264.143  Financial assurance for closure.

* * * * *
    (f) * * *
    (1) * * *
    (i) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
    (ii) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
* * * * *
    (ii) * * *
    3. Section 264.145 is amended by revising paragraphs (f)(1)(i)(D) 
and (f)(1)(ii)(D) to read as follows:


Sec. 264.145  Financial assurance for post-closure care.

* * * * *
    (f) * * *
    (1) * * *
    (i) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
    (ii) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
* * * * *
    3. Section 264.147 is amended by revising paragraphs (f)(1)(i)(C) 
and (f)(1)(ii)(D) to read as follows:


Sec. 264.147  Liability requirements.

* * * * *
    (f) * * *
    (1) * * *
    (i) * * *
    (C) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
    (ii) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS OR OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for Part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, 6935, and 6936.

    3. Section 265.143 is amended by revising paragraphs (e)(1)(i)(D) 
and (e)(1)(ii)(D) to read as follows:


Sec. 265.143  Financial assurance for closure.

* * * * *
    (e) * * *
    (1) * * *
    (i) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
    (ii) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
* * * * *
    3. Section 265.145 is amended by revising paragraphs (e)(1)(i)(D) 
and (e)(1)(ii)(D) to read as follows:


Sec. 265.145  Financial assurance for post-closure care.

* * * * *
    (e) * * *
    (1) * * *
    (i) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
    (ii) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
* * * * *
    3. Section 265.147 is amended by revising paragraphs (f)(1)(i)(C) 
and (f)(1)(ii)(D) to read as follows:


Sec. 265.147  Liability requirements.

* * * * *
    (f) * * *
    (1) * * *
    (i) * * *
    (C) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
    (ii) * * *
    (D) Assets located in the United States amounting to at least the 
sum of all obligations covered by a financial test.
* * * * *
[FR Doc. 94-25063 Filed 10-11-94; 8:45 am]
BILLING CODE 6560-50-P