| (a) An owner or operator may satisfy the requirements of a
fully funded trust or standby trust fund as provided in §37.201 of this
title (relating to Trust Fund), except that 60 days following the executive
director's final review and approval of closure or post closure expenditures
for reimbursement, release of funds shall occur.
(b) An owner or operator may satisfy the requirements of a
surety bond guaranteeing payment as provided in §37.211 of this title
(relating to Surety Bond Guaranteeing Payment), or a surety bond guaranteeing
performance as provided in §37.221 of this title (relating to Surety
Bond Guaranteeing Performance), except:
(1) the surety must also be licensed in the State of Texas;
(2) cancellation may not occur during the 90 days beginning
on the date of receipt of the notice of cancellation; and
(3) the bond must guarantee that the owner or operator
will provide alternate financial assurance within 30 days after receipt of
a notice of cancellation of the bond.
(c) An owner or operator may satisfy the requirements of an
irrevocable standby letter of credit as provided in §37.231 of this title
(relating to Irrevocable Standby Letter of Credit), except:
(1) the letter of credit shall be automatically extended unless
the issuer provides notice of cancellation at least 90 days before the current
expiration date. Under the terms of the letter of credit, the 90 days shall
begin on the date when both the owner or operator and the executive director
have received the notice, as evidenced by the return receipts; and
(2) in accordance with §37.231(h) of this title,
the executive director shall draw on the letter of credit, within 30 days
after receipt of notice from the issuing institution that the letter of credit
will not be extended, or within 60 days of an extension, if the owner or operator
fails to establish and obtain approval of such alternate financial assurance
from the executive director.
(d) An owner or operator may satisfy the requirements of insurance
as provided in §37.241 of this title (relating to Insurance), except:
(1) the insurer must be licensed in Texas; and
(2) cancellation, termination, or failure to renew may
not occur during the 90 days beginning with the date of receipt of the notice
by both the executive director and the owner or operator, as evidenced by
the return receipts.
(e) An owner or operator may satisfy the requirements of financial
assurance by demonstrating that it passes a financial test as provided in §37.251
of this title (relating to Financial Test), except the owner or operator which
has issued rated bonds must also meet the criteria of paragraphs (1) and (3)
of this subsection, or the owner or operator which has not issued rated bonds
must also meet the criteria of paragraphs (2) and (3) of this subsection.
(1) The owner or operator must have:
(A) tangible net worth of at least ten times the total current
cost estimate (or the current amount required if a certification is used)
for all closure activities;
(B) assets located in the United States amounting to at least
90% of total assets or at least ten times the total current cost estimate
(or the current amount required if a certification is used) for all closure
activities;
(C) a current rating for its most recent bond issuance of AAA,
AA, or A as issued by Standard and Poor's, or Aaa, Aa, A as issued by Moody's;
and
(D) at least one class of equity securities registered under
the Securities Exchange Act of 1934.
(2) The owner or operator must have:
(A) tangible net worth greater than $10 million, or of at least
ten times the total current cost estimate (or the current amount required
if a certification is used) for all closure activities, whichever is greater;
(B) assets located in the United States amounting to at least
90% of total assets or at least ten times the total current cost estimate
(or the current amount required if a certification is used) for all closure
activities;
(C) a ratio of cash flow divided by total liabilities greater
than 0.15; and
(D) a ratio of total liabilities divided by net worth less
than 1.5.
(3) To demonstrate that the owner or operator meets
the test, it must submit the following items to the executive director:
(A) a letter signed by the owner's or operator's chief financial
officer and worded identically to the wording specified in §37.9025(a)
of this title (relating to Wording of Financial Assurance Mechanisms); and
(B) a written guarantee, hereafter referred to as "self-guarantee,"
signed by an authorized representative which meets the requirements specified
in §37.261 of this title (relating to Corporate Guarantee). The wording
of the self-guarantee shall be acceptable to the executive director and must
include the following:
(i) the owner or operator will fund and carry out the required
closure or post closure activities, or upon issuance of an order by the executive
director, the owner or operator will set up and fund a trust, as specified
in §37.201 of this title (relating to Trust Fund) in the name of the
owner or operator, in the amount of the current cost estimates; and
(ii) if, at any time, the owner's or operator's most recent
bond issuance ceases to be rated in any category of "A" or above by either
Standard and Poor's or Moody's, the owner or operator will provide notice
in writing of such fact to the executive director within 20 days after publication
of the change by the rating service. If the owner's or operator's most recent
bond issuance ceases to be rated in any category of "A" or above by both Standard
and Poor's and Moody's, the owner or operator no longer meets the requirements
of paragraph (1) of this subsection.
(f) A parent company controlling a majority of the voting stock
of the owner or operator may satisfy the requirements of financial assurance
by demonstrating that it passes a financial test as specified in §37.251
of this title, and by meeting the requirements of a corporate guarantee as
specified in §37.261 of this title, except a guarantor that is a corporation
who has a substantial business relationship with the owner or operator may
not use the corporate guarantee. The guarantor shall also comply with the
requirements identified in this subsection.
(1) The wording of the corporate guarantee as specified in §37.361
of this title (relating to Corporate Guarantee) shall also include:
(A) the signatures of two officers of the owner or operator
and two officers of the guarantor who are authorized to bind the respective
entities; and
(B) the corporate seals.
(2) The guarantor shall also certify and submit to
the executive director that the guarantor has:
(A) majority control of the owner or operator;
(B) full authority under the laws of the state under which
it is incorporated and its articles of incorporation and bylaws to enter into
this corporate guarantee;
(C) full approval from its board of directors to enter into
this corporate guarantee; and
(D) authorization for each signatory.
(g) An owner or operator that is a nonprofit college, university,
or hospital may satisfy the requirements of financial assurance by demonstrating
that it passes a financial test as specified in §37.251 of this title,
except colleges and universities must also meet either the criteria of paragraphs
(1) and (5) or (2) and (5) of this subsection, and hospitals must also meet
either the criteria in paragraphs (3) and (5) or (4) and (5) of this subsection.
(1) Colleges or universities that issue bonds must have a current
rating for its most recent uninsured, uncollateralized, and unencumbered bond
issuance of AAA, AA, or A as issued by Standard and Poor's or Aaa, Aa, or
A as issued by Moody's.
(2) For colleges or universities that do not issue bonds,
unrestricted endowment must consist of assets located in the United States
of at least $50 million or at least 30 times the total current cost estimate
(or the current amount required if a certification is used), whichever is
greater, for all closure and post closure activities for which the college
or university is responsible as a self-guaranteeing owner or operator.
(3) Hospitals that issue bonds must have a current rating
for its most recent uninsured, uncollateralized, and unencumbered bond issuance
of AAA, AA, or A as issued by Standard and Poor's or Aaa, Aa, or A as issued
by Moody's.
(4) Hospitals that do not issue bonds must meet the following
criteria:
(A) total revenues less total expenditures divided by total
revenues must be equal to or greater than 0.04;
(B) long-term debt divided by net fixed assets must be less
than or equal to 0.67;
Cont'd... |
