Section 845.980  Surety Bond Guaranteeing Performance

a)         An owner or operator may satisfy the requirements of this Subpart by obtaining a surety bond that conforms to the requirements of this Section and submitting the bond to the Agency.

b)         The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on federal bonds in Circular 570 of the U.S. Department of the Treasury. Circular 570 is available on the Internet from the following website: https://fiscal.treasury.gov/surety-bonds/circular-570.html.

c)         The surety bond must be on forms prescribed by the Agency.

d)         Any payments made under the bond will be placed in the Coal Combustion Residual Surface Impoundment Financial Assurance Fund within the State Treasury.

e)         Conditions

1)         The bond must guarantee that the owner or operator will:

A)        Provide closure and post-closure care in accordance with the approved closure and post-closure care plans and, if the bond is a corrective action bond, provide corrective action in accordance with this Part; and

B)        Provide alternative financial assurance, as specified in this Subpart, and obtain the Agency's written approval of the assurance provided within 90 days after receipt by both the owner or operator and the Agency of a notice from the surety that the bond will not be renewed for another term.

2)         The surety will become liable on the bond obligation when, during the term of the bond, the owner or operator fails to perform as guaranteed by the bond. The owner or operator fails to perform when the owner or operator:

A)        Abandons the CCR surface impoundment;

B)        Is adjudicated bankrupt;

C)        Fails to initiate closure of the CCR surface impoundment or post-closure care or corrective action when ordered to do so by the Board under Title VIII of the Act (Enforcement), or when ordered to do so by a court of competent jurisdiction;

D)        Notifies the Agency that it has initiated closure or corrective action, or initiates closure or corrective action, but fails to close the CCR surface impoundment or provide post-closure care or corrective action in accordance with the Agency-approved closure and post-closure care or corrective action plans;

E)        For a corrective action bond, fails to implement or complete corrective action at a CCR surface impoundment in accordance with Section 845.670; or

F)         Fails to, within 90 days after receipt by both the owner or operator and the Agency of a notice from the surety that the bond will not be renewed for another term:

i)          Provide alternative financial assurance, as specified in this Subpart; and

ii)         Obtain the Agency's written approval of the assurance.

3)         Upon failure of the owner or operator to perform as guaranteed by the bond, the surety must have the option of:

A)        providing closure and post-closure care in accordance with the approved closure and post-closure care plans;

B)        carrying out corrective action in accordance with the corrective action plan; or

C)        paying the penal sum.

f)         Penal Sum

1)         The penal sum of the bond must be in an amount at least equal to the current cost estimate.

2)         Whenever the current cost estimate decreases, the penal sum may be reduced to the amount of the current cost estimate following written approval by the Agency.

3)         Whenever the current cost estimate increases to an amount greater than the penal sum, the owner or operator, within 90 days after the increase, must either cause the penal sum to be increased to an amount at least equal to the current cost estimate and submit evidence of that increase to the Agency or obtain other financial assurance, as specified in this Subpart, and submit evidence of the alternative financial assurance to the Agency.

g)         Term

1)         The bond must be issued for a term of at least one year and must not be cancelable during that term.

2)         The surety bond must provide that, on the current expiration date and on each successive expiration date, the term of the surety bond will be automatically extended for a period of at least one year unless, at least 120 days before the current expiration date, the surety notifies both the owner or operator and the Agency by certified mail of a decision not to renew the bond. Under the terms of the surety bond, the 120 days will begin on the date when both the owner or operator and the Agency have received the notice, as evidenced by the return receipts.

3)         The Agency must release the surety by providing written authorization for termination of the bond to the owner or operator and the surety when either of the following occurs:

A)        An owner or operator substitutes alternative financial assurance, as specified in this Subpart; or

B)        The Agency releases the owner or operator from the requirements of this Subpart in accordance with Section 845.920(b).

h)         Cure of Default and Refunds

1)         The Agency must release the surety if, after the surety becomes liable on the bond, the owner or operator or another person provides financial assurance for closure and post-closure care of the CCR surface impoundment or corrective action at a CCR surface impoundment; unless the Agency determines that the closure, post-closure care, or corrective action plan, or the amount of substituted financial assurance, is inadequate to provide closure and post-closure care or implement corrective action in compliance with this Part.

2)         After closure and post-closure care have been completed in accordance with the plans and requirements of this Part or after the completion of corrective action at a CCR surface impoundment in accordance with this Part, the Agency must refund any unspent money that was paid into the Coal Combustion Residual Surface Impoundment Financial Assurance Fund by the surety, subject to appropriation of funds by the Illinois General Assembly.

i)          The surety will not be liable for deficiencies in the performance of closure, post-closure care, or corrective action by the owner or operator after the Agency releases the owner or operator from the requirements of this Subpart.