RCRA REVISION CHECKLIST 113

Consolidated Liability Requirements
53 FR 33938-33960
September 1, 1988
56 FR 30200
July 1, 1991
57 FR 42832-42844
September 16, 1992
(RCRA Cluster III, Non-HSWA provisions)

1	abNotes:  )  This special consolidated checklist addresses changes made to the Federal code by the September 1, 1988 final rule (53 FR 33938, withheld Revision Checklist 51) as well as amendments made by the July 1, 1991 (56 FR 30200, withheld Revision Checklist 93) and the September 16, 1992 (57 FR 42832) final rules.  The September 1, 1988 rule was the subject of litigation and its checklist, Revision Checklist 51, was withheld by EPA to encourage States not to adopt those changes until a final settlement agreement could be reached and implemented.  The July 1, 1991 and September 16, 1992 rules were promulgated to make the revisions mandated by the settlement agreement.  Now that all requirements of the settlement agreement have been met, EPA is issuing this Consolidated Liability Requirements Checklist to aid States in correctly adopting the changes made by these three rules.

Revision Checklists 51 and 93 will not be issued individually.  Rather, States should use this Consolidated Liability Requirements Checklist to adopt the provisions of the three final rules.  States that have already adopted changes based on the September 1, 1988 final rule are strongly encouraged to complete this consolidated checklist to ensure that all revisions pursuant to the two amendments are correctly made in the State's code.  Note that the deadline for this consolidated checklist is July 1, 1994, based on the promulgation date of the most recent of the amendments.

2	ab)  In the September 1, 1988 final rule, all changes were classified as less stringent and, therefore, optional with regard to State adoption.  Note that, as part of the settlement agreement with Chemical Waste Management, Inc., the claims reporting requirements were reclassified as more stringent and, therefore, required for State adoption.  Only those changes marked as optional (†) in this consolidated checklist should be considered less stringent provisions.  The September 16, 1992 rule modified the claims reporting requirements (264.147(a)(7)&(b)(7) and 265.147(a)(7)&(b)(7)) and they are less stringent than the claim reporting requirements promulgated in the September 1, 1988 rule.  Thus, States which have already adopted the September 1, 1988 provisions are not required to adopt the "clarified" reporting requirements of the September 16, 1992 rule, although EPA strongly encourages them to do so.  States that did not adopt the September 1, 1988 claims reporting requirements should not do so but should, instead, adopt the clarified September 16, 1992 version included in this consolidated checklist.

3	ab)  This checklist includes a "rule" reference column.  To simplify references to the three rules addressed by this checklist, "51" will signify the September 1, 1988 rule, "93" will signify the July 1, 1991 rule, and "113" will indicate the September 16, 1992 rule.

4	ab)  There were several typographical errors in the September 1, 1988 Federal Register article.  These are explained in endnotes in this consolidated checklist.

5	ab)  The optional designation (†) is placed in the margin of the consolidated checklist if a checklist introduced a new optional paragraph into the Federal code.  If a checklist addresses optional changes to an existing paragraph, the optional designation is placed beside the corresponding checklist number.

	FEDERAL REQUIREMENTS	RULE
REFERENCE	FEDERAL RCRA CITATION	ANALOGOUS STATE CITATION	STATE ANALOG IS:				
					EQUIV-ALENT	LESS
STRIN-
GENT	MORE STRIN-GENT	BROADER IN SCOPE	
	PART 264 - STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES								
	SUBPART H - FINANCIAL REQUIREMENTS								
	DEFINITIONS OF TERMS AS USED IN THIS SUBPART								
†	add new paragraph defining "substantial business relationship"	51	264.141(h)						

	FINANCIAL ASSURANCE FOR CLOSURE								
	remove "hereafter referred to as `corporate guarantee'" from first sentence; insert "direct or higher-tier" before "parent corporation"; add phrase regarding sibling firms and firms with substantial business relationships to end of second sentence; remove "corporate" before "guarantee" in three places; insert "certified copy of the" before "guarantee must accompany"; add text regarding letter from guarantor's chief financial officer and what the letter must describe	†113	264.143(f)(10)						

	FINANCIAL ASSURANCE FOR POST-CLOSURE CARE								
	replace "of" with "for" in the first sentence; remove "hereafter referred to as 'corporate guarantee'"; insert "direct or higher-tier" before "parent corporation"; add phrase regarding sibling firms and firms with substantial business relationships to end of second sentence; remove "corporate" before "guarantee" in three places; insert "A certified copy of" after "§ 264.151(h)."; change "The corporate" to "the corporate"; add text regarding letter from guarantor's chief financial officer and what the letter must describe 	†113	264.145(f)(11)						
	LIABILITY REQUIREMENTS								
	delete "in one of three ways"; replace "and (3)" with "(3), (4), (5), or (6)"	†51	264.147(a)						
	insert "or" after "owner"; delete "corporate" before "guarantee"; change "paragraph (g)" to "paragraphs (f) and (g)"	†51,93	264.147(a)(2)						
	replace existing paragraph; requirements may be met by obtaining letter of credit for liability coverage	†51	264.147(a)(3)						
†	add new paragraph; requirements may be met by obtaining surety bond for liability coverage	51	264.147(a)(4)						
†	add new paragraph; requirements may be met by obtaining trust fund for liability coverage	51	264.147(a)(5)						
†	add new paragraph; liability coverage may be demonstrated by combination of financial mechanisms; amount of coverage must total at least the minimum amounts required by 264.147; specification of "primary" and "excess" coverage	51	264.147(a)(6)						
	add and amend new paragraph; notify Regional Administrator in writing whenever:	51,113	264.147(a)(7)						
	add and amend new subparagraph; claims reduce amount of financial assurance for liability coverage	51,113	264.147(a)(7)(i)						
	Certification of Valid Claim for bodily injury or property damages caused by sudden or non-sudden accidental occurrence is entered between the owner or operator and a third- party claimant	51,113	264.147(a)(7)(ii)						
	final court order establishing judgment for bodily injury or property damage caused by sudden or non-sudden accidental occurrence is issued against the owner or operator or an instrument providing financial assurance	113	264.147(a)(7)(iii)						
	change "miscellaneous disposal unit" to "disposal miscellaneous unit"; after "legal defense costs" insert text regarding combination of per-occurrence coverage levels for sudden and non-sudden accidental occurrences, single annual aggregate level, and requirements for combining coverage; delete "in one of three ways,"; replace "and (3)" with "(3), (4), (5), or (6),"	†51,93	264.147(b)						
	delete "corporate" before "guarantee"	†51	264.147(b)(2)						
	replace existing paragraph; requirements may be met by obtaining letter of credit for liability coverage	†51	264.147(b)(3)						
	replace existing paragraph; requirements may be met by obtaining surety bond for liability coverage	†51	264.147(b)(4)						
†	add new paragraph; requirements may be met by obtaining trust fund for liability coverage	51	264.147(b)(5)						
†	add new paragraph; liability coverage may be demonstrated by combination of mechanisms; amount of coverage must total at least the minimum amount required by 264.147; specification of "primary" and "excess" coverage	51	264.147(b)(6)						
	add and amend new paragraph; notify Regional Administrator in writing whenever:	51,113	264.147(b)(7)						
	add and amend new subparagraph; claims reduce amount of financial assurance for liability coverage	51,113	264.147(b)(7)(i)						
	add and amend new subparagraph; Certification of Valid Claim for bodily injury or property damages caused by sudden or non-sudden accidental occurrence is entered between the owner or operator and a third- party claimant	51,113	264.147(b)(7)(ii)						
	add new subparagraph; final court order establishing judgment for bodily injury or property damage caused by sudden or non-sudden accidental occurrence is issued against the owner or operator or an instrument providing financial assurance	113	264.147(b)(7)(iii)						
	insert ", a letter of credit, a surety bond, a trust fund, or a guarantee" after "obtain insurance"; replace "Evidence of insurance" with "Evidence of liability coverage"	†113	264.147(f)(6)						
	remove "corporate" before "guarantee"	†51	264.147(g)						
	remove "corporate" before "guarantee" in three places; insert "direct or higher-tier" before "parent"; after "parent corporation of the owner or operator" insert ", 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.";  change "The guarantee must meet" to "The guarantor must meet"; change "(f)(7)" to "(f)(6)"; add "of this part" after "§ 264.151(h)(2)"; replace "The terms of the corporate guarantee must provide that:" with text regarding letter from the guarantor's chief financial officer	†51	264.147(g)(1)						
	remove and reserve	†51	264.147(g)(1)(ii)						
	remove "corporate" before "guarantee"	†51	264.147(g)(2)(i)						
	remove "corporate" before "guarantee"	†51	264.147(g)(2)(ii)						
	redesignate old paragraph (h) as (k); add new paragraph titled "Letter of credit for liability coverage"	†51	264.147(h)						
†,	requirements may be satisfied by obtaining irrevocable standby letter of credit that conforms to 264.147(h) requirements and submitting copy to Regional Administrator	51	264.147(h)(1)						
†	criteria for financial institution issuing letter of credit	51	264.147(h)(2)						
†	wording of letter of credit must be identical to wording specified in 264.151(k)	51	264.147(h)(3)						
†	establishment and use of standby trust fund by owner or operator using letter of credit	113	264.147(h)(4)						
†	wording of standby trust fund must be identical to wording specified in 264.151(n)	113	264.147(h)(5)						
†	add new paragraph titled "Surety bond for liability coverage"	51	264.147(i)						
†	requirements may be satisfied by obtaining surety bond conforming to 264.147(i) requirements and submitting copy to Regional Administrator	51	264.147(i)(1)						
†	criterion for surety company issuing bond	51	264.147(i)(2)						
†	wording of surety bond must be identical to wording specified in 264.151(l)	51	264.147(i)(3)						
†	conditions under which surety bond may be used	51	264.147(i)(4)						
			264.147(i)(4)(i)						
			264.147(i)(4)(ii)						
†	add new paragraph titled "Trust fund for liability coverage"	51	264.147(j)						
†	requirements may be satisfied by establishing trust fund and submitting an originally signed duplicate of trust agreement to Regional Administrator	51	264.147(j)(1)						
†	criteria for trustee	51	264.147(j)(2)						
†	trust fund must be funded for full amount of liability coverage it is to provide; requirements if fund is reduced below full amount; definition of "full amount"	51	264.147(j)(3)						
†	wording of trust fund must be identical to wording specified in 264.151(m)	51	264.147(j)(4)						
	old paragraph 264.147(h) becomes 264.147(k)	†51	264.147(k)						
	WORDING OF THE INSTRUMENTS								
	add text given at 53 FR 33952 to end of "Financial Guarantee Bond"	†51	264.151(b)						
	replace wording of letter from chief financial officer for closure and/or post-closure care with that shown at 57 FR 42836 & 42837	†113	264.151(f)						
,	replace wording of letter from chief financial officer for liability coverage with that shown at 57 FR 42837 & 42838	51,†113	264.151(g)						
	replace wording of corporate guarantee for closure and/or post-closure care with that shown at 57 FR 42838 & 42839	†113	264.151(h)(1)						
	replace wording of guarantee for liability coverage with that shown at  FR 42839 & 42840	†51,113	264.151(h)(2)						
	after "insured" add other entities that may cancel endorsement; delete "sixty" before "60"	†51	264.151(i)(2)(d)						
	after "insured" add other entities that may cancel endorsement; delete "sixty" before "60"	†51	264.151(j)(2)(d)						
	add new introductory subparagraph and wording for letter of credit for liability coverage as shown at 57 FR 42840 & 42841	†51,113	264.151(k)						
	add new introductory subparagraph and wording for surety bond as shown at 53 FR 33955 & 33956	†51	264.151(l)						
	add new introductory subparagraph and wording for trust agreement as shown at 53 FR 33956-33958	†51	264.151(m)(1)						
†,	add new introductory subparagraph and example of certification of acknowledgement as shown at 53 FR 33958, third column	51	264.151(m)(2)						
†,	add new introductory subparagraph and wording for standby trust agreement as shown at 57 FR 42841-42843	113	264.151(n)(1)						
†	add new introductory subparagraph and wording for certification of acknowledgement to accompany trust agreement, as shown at 57 FR 42843, first and second columns	113	264.151(n)(2)						
	PART 265 - INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES								
	SUBPART H - FINANCIAL REQUIREMENTS								
	DEFINITIONS OF TERMS AS USED IN THIS SUBPART								
†,	add new paragraph defining "substantial business relationship"	51	265.141(h)						

	FINANCIAL ASSURANCE FOR CLOSURE								
	remove "hereafter referred to as `corporate guarantee'" from first sentence; insert "direct or higher-tier" before "parent corporation"; add phrase regarding sibling firms and firms with substantial business relationships to end of second sentence; remove "corporate" before "guarantee" in three places; insert "A certified copy of" after "§ 264.151(h)."; change "The" to "the"; add text regarding letter from guarantor's chief financial officer and what the letter must describe	†113	265.143(e)(10)						

	FINANCIAL ASSURANCE FOR POST-CLOSURE CARE								
	remove "hereafter referred to as `corporate guarantee'" from first sentence; insert "direct or higher tier" before "parent corporation"; add phrase regarding sibling firms and firms with substantial business relationships to end of second sentence; remove "corporate" before "guarantee" in three places; insert "A certified copy of" after "§ 264.151(h)."; change "The" to "the"; add text regarding letter from guarantor's chief financial officer and what the letter must describe	†113	265.145(e)(11)						
	LIABILITY REQUIREMENTS								
	delete "By the effective date of these regulations"; change "an" to "An"; delete "in one of three ways,"; replace "and (3)" with "(3), (4), (5), or (6)"	†51	265.147(a)						
	delete "corporate" before "guarantee"; change "paragraph (g)" to "paragraphs (f) and (g)"	†51,93	265.147(a)(2)						
	replace existing paragraph; requirements may be met by obtaining letter of credit for liability coverage	†51	265.147(a)(3)						
†	add new paragraph; requirements may be met by obtaining surety bond for liability coverage	51	265.147(a)(4)						
†	add new paragraph; requirements may be met by obtaining trust fund for liability coverage	51	265.147(a)(5)						
†	add new paragraph; liability coverage may be demonstrated by combination of mechanisms; amount of coverage must total at least the minimum amounts required by 265.147; specification of "primary" and "excess" coverage	51	265.147(a)(6)						
	add new paragraph; notify Regional Administrator in writing whenever:	51,113	265.147(a)(7)						
	add new subparagraph; claims reduce amount of financial assurance for liability coverage	51,113	265.147(a)(7)(i)						
	Certification of Valid Claim for bodily injury or property damages caused by sudden or non-sudden accidental occurrence is entered between the owner or operator and a third- party claimant	51,113	265.147(a)(7)(ii)						
	final court order establishing judgment for bodily injury or property damage caused by sudden or non-sudden accidental occurrence is issued against the owner or operator or an instrument providing financial assurance	113	265.147(a)(7)(iii)						
	change "bodily damage" to "bodily injury"; after "legal defense costs." insert text regarding combination of per-occurrence coverage levels for sudden and non-sudden accidental occurrences, single annual aggregate level, and requirements for combining coverage; delete "in one of three ways,"; replace "and (3)" with "(3), (4), (5), or (6)"	†51	265.147(b)						
	delete "corporate" before "guarantee"	†51	265.147(b)(2)						
	replace existing paragraph; requirements may be met by obtaining letter of credit for liability coverage	†51	265.147(b)(3)						
	replace existing paragraph and subparagraphs; requirements may be met by obtaining surety bond for liability coverage	†51	265.147(b)(4)						
	replace existing paragraph; requirements may be met by obtaining trust fund for liability coverage	†51	265.147(b)(5)						
†	add new paragraph; liability coverage may be demonstrated by combination of mechanisms; amount of coverage must total at least the minimum amount required by 265.147; specifying "primary" and "excess" coverage	51	265.147(b)(6)						
	add and amend new paragraph; notify Regional Administrator in writing whenever:	51,113	265.147(b)(7)						
	claims reduce amount of financial assurance for liability coverage	51,113	265.147(b)(7)(i)						
	Certification of Valid Claim for bodily injury or property damages caused by sudden or non-sudden accidental occurrence is entered between the owner or operator and a third- party claimant	51,113	265.147(b)(7)(ii)						
	add new subparagraph; final court order establishing judgment for bodily injury or property damage caused by sudden or non-sudden accidental occurrence is issued against the owner or operator or an instrument providing financial assurance	113	265.147(b)(7)(iii)						
	insert ", a letter of credit, a surety bond, a trust fund, or a guarantee" after "obtain insurance"; replace "Evidence of insurance" with "Evidence of liability coverage"	†113	265.147(f)(6)						
	remove "corporate" before "guarantee"	†51	265.147(g)						
	remove "corporate" before "guarantee" in three places; insert "direct or higher-tier" before "parent"; after "parent corporation of the owner or operator" insert ", 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"; change "(f)(7)" to "(f)(6)"; add "of this chapter" after "§ 264.151(h)(2)"; replace "The terms of the corporate guarantee must provide that:" with text regarding letter from the guarantor's chief financial officer	†51	265.147(g)(1)						
	remove and reserve	†51	265.147(g)(1)(ii)						
	remove "corporate" before "guarantee"	†51	265.147(g)(2)(i)						
	remove "corporate" before "guarantee"	†51	265.147(g)(2)(ii)						
	redesignate old 265.147(h) as 265.147(k); add new paragraph titled "Letter of credit for liability coverage"	†51	265.147(h)						
†	requirements may be satisfied by obtaining irrevocable standby letter of credit that conforms to 265.147(h) requirements and submitting copy to Regional Administrator	51	265.147(h)(1)						
†	criteria for financial institution issuing letter of credit	51	265.147(h)(2)						
†	wording of letter of credit must be identical to wording specified in 264.151(k)	51	265.147(h)(3)						
†	establishment and use of standby trust fund by owner or operator using letter of credit	113	265.147(h)(4)						
†	wording of standby trust fund must be identical to wording specified in 264.151(n)	113	265.147(h)(5)						
†	add new paragraph titled "Surety bond for liability coverage"	51	265.147(i)						
†	requirements may be satisfied by obtaining surety bond conforming to 265.147(i) requirements and submitting copy to Regional Administrator	51	265.147(i)(1)						
†	criterion for surety company issuing bond	51	265.147(i)(2)						
†,	wording of surety bond must be identical to wording specified in 264.151(l)	51	265.147(i)(3)						
†	conditions under which surety bond may be used	51	265.147(i)(4)						
			265.147(i)(4)(i)						
			265.147(i)(4)(ii)						
†	add new paragraph titled "Trust fund for liability coverage"	51	265.147(j)						
†	requirements may be satisfied by establishing trust fund conforming to 265.147(j) requirements and submitting signed duplicate of trust agreement to Regional Administrator	51	265.147(j)(1)						
†	criteria for trustee	51	265.147(j)(2)						
†	trust fund must be funded for full amount of liability coverage it is to provide; requirements if fund is reduced below full amount; definition of "full amount"	51	265.147(j)(3)						
†	wording of trust fund must be identical to wording specified in 264.151(m)	51	265.147(j)(4)						
	former 265.147(h) becomes 265.147(k)	†51	265.147(k)