| (a) An owner or operator may satisfy the requirements of financial
assurance for liability as specified in Subchapter E of this chapter (relating
to Financial Assurance Requirements for Liability Coverage) by demonstrating
that it passes a financial test which conforms to the requirements of this
section, in addition to the requirements specified in Subchapter A of this
chapter (relating to General Financial Assurance Requirements).
(b) To pass this test, the owner or operator must meet the
criteria of either paragraph (1) or (2) of this subsection:
(1) the owner or operator must have:
(A) net working capital and tangible net worth each at least
six times the amount of liability coverage to be demonstrated by this test;
and
(B) tangible net worth of at least $10 million; and
(C) assets in the United States amounting to either:
(i) at least 90% of his total assets; or
(ii) at least six times the amount of liability coverage to
be demonstrated by this test.
(2) the owner or operator must have:
(A) a current rating for the owner's or operator's most recent
bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa,
Aa, A, or Baa as issued by Moody's; and
(B) tangible net worth of at least $10 million; and
(C) tangible net worth at least six times the amount of liability
coverage to be demonstrated by this test; and
(D) assets in the United States amounting to either:
(i) at least 90% of his total assets; or
(ii) at least six times the amount of liability coverage to
be demonstrated by this test.
(c) The phrase "amount of liability coverage" refers to the
annual aggregate amounts for which coverage is required for sudden or nonsudden
liability.
(d) To demonstrate that the owner or operator meets this test,
the owner or operator shall submit the following items to the executive director:
(1) a letter signed by the owner's or operator's chief financial
officer and worded as specified in the Financial Test for Liability, Part
A, §37.651 of this title (relating to Financial Test for Liability).
An owner or operator using the financial test to demonstrate assurance for
closure, post closure, or corrective action as specified in Subchapter B of
this chapter (relating to Financial Assurance Requirements for Closure, Post
Closure, and Corrective Action), and liability coverage must submit the letter
specified in the Financial Test for Liability, Part B, §37.651 of this
title to cover both forms of financial responsibility. A separate letter as
specified in §37.351 of this title (relating to Financial Test) is not
required; and
(2) a copy of the independent certified public accountant's
report on examination of the owner's or operator's financial statements for
the latest completed fiscal year; and
(3) a special report from the owner's or operator's independent
certified public accountant to the owner or operator stating that:
(A) the accountant has compared the data which the letter from
the chief financial officer specifies as having been derived from the independently
audited, year-end financial statements for the latest fiscal year with the
amounts in such financial statements; and
(B) in connection with that procedure:
(i) such amounts were found to be in agreement; or
(ii) no matters came to the attention of the independent certified
public accountant which indicated that the specified data should be adjusted.
(e) After the initial submission of items specified in subsection
(d) of this section, the owner or operator shall send updated information
to the executive director within 90 days after the close of each succeeding
fiscal year. This information shall consist of all three items specified in
subsection (d) of this section.
(f) If the owner or operator no longer meets the requirements
of subsection (b) of this section, the owner or operator must obtain alternate
financial assurance as specified in this subchapter for the entire amount
of required liability coverage. Evidence of liability coverage must be submitted
to the executive director within 90 days after the end of the fiscal year
for which the year-end financial data show that the owner or operator no longer
meets the test requirements.
(g) The executive director may, based on a reasonable belief
that the owner or operator may no longer meet the requirements of subsection
(b) of this section, require reports of financial condition at any time from
the owner or operator in addition to those specified in subsection (d) of
this section. If the executive director finds, on the basis of such reports
or other information, that the owner or operator no longer meets the requirements
of subsection (b) of this section, the owner or operator shall provide alternate
financial assurance as specified in this subchapter within 30 days after notification
of such a finding.
(h) The executive director may disallow use of this test on
the basis of qualifications in the opinion expressed by the independent certified
public accountant's report on examination of the owner's or operator's financial
statements. An adverse opinion or disclaimer of opinion shall be cause for
disallowance. The executive director shall evaluate other qualifications on
an individual basis. The owner or operator shall provide alternate financial
assurance as specified in this subchapter within 30 days after notification
of the disallowance.
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