Section 324.11525 - Perpetual care fund.
NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT (EXCERPT)
Act 451 of 1994
324.11525 Perpetual care fund.
Sec. 11525.
(1) The owner or operator of a landfill shall establish and maintain a perpetual care fund for a period of 30 years after final closure of the landfill as specified in this section. A perpetual care fund may be established as a trust or an escrow account and may be used to demonstrate financial assurance for type II landfills under section 11523 and section 11523a.
(2) Except as otherwise provided in this section, the owner or operator of a landfill shall deposit into his or her perpetual care fund 75 cents for each ton or portion of a ton or 25 cents for each cubic yard or portion of a cubic yard of solid waste that is disposed of in the landfill after June 17, 1990. The deposits shall be made not less than semiannually until the fund reaches the maximum required fund amount. As of July 1, 1996, the maximum required fund amount is $1,156,000.00. This amount shall be annually adjusted for inflation and rounded to the nearest thousand. The department shall adjust the maximum required fund amount for inflation annually by multiplying the amount by an inflation factor derived from the most recent bureau of reclamation composite index published by the United States department of commerce or another index more representative of the costs of closure and postclosure monitoring and maintenance as determined appropriate by the department.
(3) The owner or operator of a landfill that is used for the disposal of the following materials shall deposit into the perpetual care fund 7.5 cents for each ton or cubic yard or portion of a ton or cubic yard of the following materials that are disposed of in the landfill after June 17, 1990:
(a) Coal ash, wood ash, or cement kiln dust that is disposed of in a landfill that is used only for the disposal of coal ash, wood ash, or cement kiln dust, or a combination of these materials, or that is permanently segregated in a landfill.
(b) Wastewater treatment sludge or sediments from wood pulp or paper producing industries that is disposed of in a landfill that is used only for the disposal of wastewater treatment sludge and sediments from wood pulp or paper producing industries, or that is permanently segregated in a landfill.
(c) Foundry sand or other material that is approved by the department for use as daily cover at an operating landfill, that is disposed of in a landfill that is used only for the disposal of foundry sand, or that is permanently segregated in a landfill.
(4) The owner or operator of a landfill that is used only for the disposal of a mixture of 2 or more of the materials described in subsection (3)(a) to (c) or in which a mixture of 2 or more of these materials are permanently segregated shall deposit into the perpetual care fund 7.5 cents for each ton or cubic yard or portion of a ton or cubic yard of these materials that are disposed of in the landfill after July 1, 1996.
(5) Money is not required to be deposited into a perpetual care fund for materials that are regulated under part 631.
(6) The owner or operator of a landfill may contribute additional amounts into the perpetual care fund at his or her discretion.
(7) The custodian of a perpetual care fund shall be a bank or other financial institution that has the authority to act as a custodian and whose account operations are regulated and examined by a federal or state agency. Until the perpetual care fund reaches the maximum required fund amount, the custodian of a perpetual care fund shall credit interest and earnings of the perpetual care fund to the perpetual care fund. However, upon the direction of the owner or operator, the custodian may utilize the interest and earnings of the perpetual care fund to pay the solid waste management program administration fee or the surcharge required by section 11525a for the landfill for which the perpetual care fund was established. After the perpetual care fund reaches the maximum required fund amount, interest and earnings shall be distributed as directed by the owner or operator. The agreement governing the operation of the perpetual care fund shall be executed on a form consistent with this part as prepared by the department. The custodian may be compensated from the fund for reasonable fees and costs incurred for his or her responsibilities as custodian. The custodian of a perpetual care fund shall annually make an accounting to the department within 30 days following the close of the state fiscal year.
(8) The custodian of a perpetual care fund shall not disburse any funds to the owner or operator of a landfill for the purposes of the perpetual care fund except upon the prior written approval of the department. However, the custodian shall ensure the filing of all required tax returns for which the perpetual care fund is liable and shall disburse funds to pay lawfully due taxes owed by the perpetual care fund without permission of the department, and may disburse interest and earnings of the perpetual care fund to pay the solid waste management program administration fee or the surcharge required by section 11525a as provided in subsection (7). The owner or operator of the landfill shall provide notice of requests for disbursement and denials and approvals to the custodian of the perpetual care fund. Requests for disbursement from a perpetual care fund shall be submitted not more frequently than semiannually. The owner or operator of a landfill may request disbursement of funds from a perpetual care fund whenever the amount of money in the fund exceeds the maximum required fund amount. The department shall approve the disbursement provided the total amount of financial assurance maintained meets the requirements of sections 11523 and 11523a. As used in this subsection, “maximum required fund amount” means:
(a) For those landfills containing only those materials specified in subsection (3), an amount equal to 1/2 of the maximum required fund amount specified in subsection (2).
(b) For all other landfills, an amount equal to the maximum required fund amount specified in subsection (2).
(9) If the owner or operator of a landfill refuses or fails to conduct closure, postclosure monitoring and maintenance, or corrective action as necessary to protect the public health, safety, or welfare, or the environment or fails to request the disbursement of money from a perpetual care fund when necessary to protect the public health, safety, or welfare, or the environment, or fails to pay the solid waste management program administration fee or the surcharge required under section 11525a, then the department may require the disbursement of money from the perpetual care fund and may expend the money for closure, postclosure monitoring and maintenance, and corrective action, as necessary. The department may assess a perpetual care fund for administrative costs associated with actions taken under this subsection.
(10) Upon approval by the department of a request to terminate financial assurance for a landfill under section 11525b, any money in the perpetual care fund for that landfill shall be disbursed by the custodian to the owner of the landfill unless a contract between the owner and the operator of the landfill provides otherwise.
(11) The owner of a landfill shall provide notice to the custodian of the perpetual care fund for that landfill if there is a change of ownership of the landfill. The custodian shall maintain records of ownership of a landfill during the time in which a perpetual care fund is established.
(12) This section does not relieve an owner or operator of a landfill of any liability that he or she may have under this part or as otherwise provided by law.
(13) This section does not create a cause of action at law or in equity against a custodian of a perpetual care fund other than for errors or omissions related to investments, accountings, disbursements, filings of required tax returns, and maintenance of records required by this section or the applicable perpetual care fund.
(14) As used in this section, “custodian” means the trustee or escrow agent of a perpetual care fund.
History: 1994, Act 451, Eff. Mar. 30, 1995 ;-- Am. 1996, Act 359, Imd. Eff. July 1, 1996 ;-- Am. 1996, Act 506, Imd. Eff. Jan. 9, 1997 ;-- Am. 2003, Act 153, Eff. Oct. 1, 2003
Popular Name: Act 451
Popular Name: NREPA
Popular Name: Solid Waste Act