15A NCAC 02O .0302. SELF INSURANCE

(a)  Assurance of financial responsibility may be provided by an owner or operator or guarantor as a self‑insurer if the owner or operator has complied with all of the laws, rules, and regulations relative to the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund and the owner or operator or guarantor either establishes a Trust Fund as set out in Paragraph (h) of this Rule or qualifies to be a self‑insurer by passing the financial test in Paragraph (b) of this Rule or a financial test of 40 CFR 280.95.

(b)  To qualify as an insurer, an owner, operator, or guarantor, individually or collectively, must meet the following criteria based on year‑end financial statements for the latest completed fiscal year.

(1)           The owner or operator, or guarantor, individually or collectively must have a total tangible net worth of at least:

(A)          The sum of the amounts specified in Subparagraphs (b)(1)(A)(i) and (ii) of this Rule as follows, not to exceed three million dollars ($3,000,000) and not to be less than one hundred fifty thousand dollars ($150,000):

(i)            the multiple of:

(I)            the number of tanks being cov­ered by this mechanism,

(II)          the cleanup costs required to be paid by the owner or operator per occurrence in accordance with G.S. 143‑215.94B(b),

(III)        the proportion of the required financial assurance required pursuant to Rule .0204 of this Subchapter being covered by this mechanism, and

(IV)         a constant representing an aver­age value per tank calculated from 0.05 for each underground storage tank covered by this mechanism which is in compli­ance with any performance stan­dards required on December 22, 1998, and 0.18 for each under­ground storage tank covered by this mechanism which is not in compliance with any performance standards required on December 22, 1998.

(ii)           two percent of the multiple of:

(I)            the number of tanks being cov­ered by this mechanism,

(II)          the amount for third party claims required to be paid by the owner or operator per occurrence in accordance with G.S. 143‑215.94B(b), and

(III)        the proportion of the required financial assurance required pursuant to Rule .0204 of the Subchapter being covered by this mechanism;

(B)          Any amount of tangible net worth used to assure financial responsi­bility for petroleum underground storage tanks not located in North Carolina;

(C)          Ten times the sum of the corrective action cost estimates, the current closure and post‑closure care cost estimates, and amount of liability coverage for Hazardous Waste Management Facilities and Hazardous Waste Storage Facilities for which a financial test is used to demonstrate financial responsibility to EPA under 40 CFR Parts 264.101, 264.143, 264.145, 265.143, 265.145, 264.147, and 265.147 or to a state implementing agency under a state program authorized by EPA under 40 CFR Part 271; and

(D)          Ten times the sum of current plugging and abandonment cost estimates for injection wells for which a financial test is used to demonstrate financial responsibility to EPA under 40 CFR Part 144.63 or to a state implementing agency under a state program authorized by EPA under 40 CFR Part 145.

(2)           In addition to any other requirements of this Section, a Guarantor must have a net worth of at least two hundred thousand dollars ($200,000) greater than any tangible net worth used by the guarantor in Subparagraph (b)(1) of this Rule.

(3)           The owner or operator, or guarantor, individually or collectively, must each have a letter signed by the chief financial officer, worded as specified in Paragraph (g) of this Rule, and must do one of the following:

(A)          Obtain annually a compilation report issued by an independent certified public accountant or certified public accounting firm;

(B)          File financial statements annually with the U.S. Securities and Exchange Commission, the Energy Information Administration, or the Rural Electrification Administration; or

(C)          Report annually the firm's tangible net worth to Dun and Bradstreet, and Dun and Bradstreet must have assigned the firm a financial strength rating of 4A or 5A.

(4)           The firm's year‑end financial statements must be independently compiled and cannot include an adverse accountant's report or a "going concern" qualification.

(c)  If an owner or operator is acting as a self‑insurer in accordance with Paragraph (b) of this Rule and finds that he or she no longer meets the requirements of the test in Paragraph (b) of this Rule based on the year‑end financial statements, the owner or operator must obtain alternative coverage within 150 days of the end of the year for which financial statements have been prepared.

(d)  The Department may require reports of financial condition at any time from a guarantor and from an owner or operator who is self insuring. If the Department finds, on the basis of such reports or other information, that the owner, operator, or guarantor no longer meets the financial test requirements of Paragraph (b) of this Rule, the owner or operator must obtain alternate coverage within 30 days after notification of such a finding.

(e)  If the owner or operator fails to obtain alternate assurance within 150 days of finding that he or she no longer meets the requirements of the financial test based on the year‑end financial statements, or within 30 days of notification by the Department that he or she no longer meets the requirements of the financial test, the owner or operator must notify the Department of such failure within 10 days.

(f)  To demonstrate that it meets the financial test under Paragraph (b) of this Rule, the chief financial officer of each owner or operator or guarantor must sign, within 120 days of the close of each financial reporting year, as defined by the 12‑month period for which financial statements used to support the financial test are prepared, a letter worded exactly as in Paragraph (g) of this Rule, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted.

(g)  LETTER FROM CHIEF FINANCIAL OFFICER

I, [insert:  name of chief financial officer], the chief financial officer of [insert:  name and address of the owner or operator, or guarantor] have prepared this letter in support of the use of [insert:  "the financial test of self‑insurance," and/or "guarantee"] to demonstrate financial responsibility for [insert:  "taking corrective action" or "compensating third parties for bodily injury and property damage"] caused by [insert:  "sudden accidental releases" and/or "nonsudden accidental releases"] in the amount of at least [insert:  dollar amount] per occurrence and [insert:  dollar amount] annual aggregate arising from operating (an) underground storage tank(s).

Underground storage tanks at the following facilities are assured by this financial test by this [insert:  "owner or operator," or "guarantor"]:

[List or attach the following information for each facility:  the name and address of the facility where tanks assured by this financial test are located, facility number(s) assigned by the Department, and date(s) of last payment of annual tank operating fee(s).  If separate mechanisms or combinations of mechanisms, other than the Commercial Leaking Petroleum Underground Storage Tank Cleanup Fund are being used to assure any of the tanks at this facility, list each tank assured by this financial test.]

[When appropriate, include the following for Hazardous Waste Management Facilities, Hazardous Waste Storage Facilities, and Injection Wells:

A {insert:  "financial test," or "guarantee"} is also used by this {insert:  "owner or operator," or "guarantor"} to demonstrate evidence of financial responsibility in the following amounts under EPA regulations or state programs authorized by EPA under 40 CFR Parts 271 and 145:

EPA Regulations                                                                                                                                        Amount

Closure (including 264.143 and 265.143)                                                                                            $____________

Post‑Closure Care (including 264.145 and 265.145)                                                                         $____________

Liability Coverage (including 264.147 and 265.147)                                                                        $____________

Corrective Action (including 264.101(b))                                                                                             $____________

Plugging and Abandonment (including 144.63)                                                                                  $____________

Total            $____________]

This [insert:  "owner or operator," or "guarantor"] has not received an adverse report or a "going concern" qualification from an independent accountant on his financial statements for the latest completed fiscal year.

 

1.                  a.             Number of USTs being covered                                        __________

b.  Average maximum amount of cleanup costs                                                                                                __________

(Rule .0204(d)      (1))

c.  Average maximum amount of third‑party costs                                                                           __________

(Rule .0204(d)      (2))

d.  proportion covered                                                                                                                              __________

e.  constant (Rule .0302(b)(1)(A)(i))                                                                                                      __________

f.   Cleanup Total (a x b x d x e)                                                                             $____________

g.  Third‑Party Total (0.02 x a x c x d)                                                                  $____________

h.  If Guarantor, list $200,000                                                                                                $____________

2.  Tangible assets applied to USTs not in North Carolina                                                                                $____________

3.  Ten times the costs for Hazardous Waste Facilities and Injections Wells                                 $____________

4.  Sum of lines 1f, 1g, 1h, and 2                                                                                                           $____________

5.  Total tangible assets                                                                                                                            $____________

6.  Total liabilities [if any of the amount reported on line 4 is included in total liabilities,

you may deduct that amount from this line and add that amount to line 7]                          $____________

7.  Tangible net worth [subtract line 6 from line 5]                                                                             $____________

Yes          No

8.  Is line 7 at least [for an owner or operator:  $150,000; for a guarantor: $350,000]?            _____    _____

9.  Is line 7 equal to or greater than line 4?                                                                                          _____    _____

10. Has a compilation report been issued by an certified public accountant or certified

      public accounting firm?                                                                                                                     _____    _____

11. Have financial statements for the latest fiscal year been filed with the Securities

      and Exchange Commission?                                                                                                            _____    _____

12. Have financial statements for the latest fiscal year been filed with the Energy Information

      Administration?                                                                                                                                   _____    _____

13. Have financial statements for the latest fiscal year been filed with the Rural Electrification

      Administration?                                                                                                                                   _____    _____

14. Has financial information been pro­vided to Dun and Bradstreet, and has Dun and

      Bradstreet provided a financial strength rating of 4A or 5A?  [Answer "Yes" only

      if both criteria have been met]                                                                                                         _____    _____

 

I hereby certify that the wording of this letter is identical to the wording specified in 15A NCAC 2O .0302, as such regulations were constituted on the date shown immediately below, and that the information contained herein is complete and accurate.

 

[Signature of chief financial officer]

[Name]

[Title]

[Date]

 

(h)  The provisions for "Trust Fund" contained in 40 CFR 280.102 are hereby incorporated by reference including any subsequent amendments and editions.  Locations where this material is available are specified in Rule .0102 of this Subchapter.

 

History Note:        Authority G.S. 58‑2‑205; 143‑215.94H; 150B‑21.6;

Eff. August 3, 1992.