20.9.10.18

RISK MANAGEMENT POOL. An owner or operator may demonstrate financial assurance for closure, post-closure care, phase I and phase II assessments, or corrective action by joining a risk management pool. In the case of closure, post-closure care, and phase I and phase II assessments, participation in an approved risk management pool shall be effective prior to the initial receipt of waste. In the case of corrective action, participation shall be effective no later than 120 days after the corrective action remedy has been approved by the secretary.

1. A. A risk management pool shall not be an allowed mechanism unless the pool is approved by the secretary. Approved pools shall incorporate any mechanisms or combination of mechanisms in 20.9.10.13 - 20.9.10.23 NMAC and have the following characteristics:

   (1) be evidenced by a written contractual agreement among participating private entities or a joint powers agreement among participating governmental entities;

   (2) would not be in violation of the anti-donation clause of the New Mexico State Constitution if funds were used;

   (3) is liquid in nature, allowing for prompt initiation and payment of closure, post-closure care, phase I and phase II assessments, or corrective action activities;

   (4) has a defined annual contribution table that provides for timely periodic payments from the risk sharers;

   (5) provides for guaranteed and timely supplemental funding in the event of an incident that depletes the assets of the pool;

   (6) has incorporated in its framework a trust fund or standby trust fund that conforms with 20.9.10.14 NMAC.

2. B. The risk management pool shall provide an explicit guarantee that funding in the amount of estimated closure, post closure care, phase I and phase II assessments and any corrective action costs will be paid by the pool into the trust fund or standby trust fund established by the facility in the event the owner or operator fails to undertake and complete the covered activities.
3. C. The owner or operator shall file a copy of the agreement establishing the risk management pool and the contribution table. The owner operator shall file an original duplicate of the trust fund agreement or standby trust fund agreement, and the guarantee by the pool to pay into the standby trust fund or trust fund for covered activities for the particular facility.

[20.9.10.18 NMAC - Rp, 20 NMAC 9.1.IX.906, 8/2/2007]