5 Colo. Code Regs. § 1002-66.11

Current through Register Vol. 47, No. 17, September 10, 2024

Section 5 CCR 1002-66.11 - WRITTEN GUARANTEE CRITERIA

A permittee or applicant may satisfy the requirements of subsection 61.13 of Regulation No. 61 by obtaining a written individual or business guarantee that meets the requirements of this section. After the Division approves the use of the written guarantee instrument by a permittee or applicant, the requirements of section 66.11 must be met annually by the permittee or applicant.

(1) The terms of a written guarantee must provide that:

(a) For a facility(ies) covered by the guarantee, if the permittee fails to perform closure, post-closure, and corrective actions in accordance with the permittee's approved financial assurance plan and permit requirements, the guarantor will:

(i) Either perform or pay a third party to perform closure, post-closure, and corrective actions as required for the facility(ies) (performance guarantee); or

(ii) Establish a fully funded trust fund in the name of the permittee in the amount of closure costs (payment guarantee).

(b) The guarantee will remain in force while the permittee is required to comply with the closure, post-closure, and corrective actions requirements of the permit, unless the guarantor sends prior notice of cancellation by certified mail to the permittee and Division. Cancellation may not occur, however, during the 90 days beginning on the date of receipt of the notice of cancellation by both the permittee and the Division, as evidenced by the return receipts.

(c) If notice of cancellation is given, the permittee must, within 60 days following receipt of the cancellation notice by the permittee and the Division, submit to the Division alternate financial assurance. Such financial assurance must meet the requirements of subsections 61.13(4)(h)(iii)-(iv) of Regulation No. 61.

(i) If the permittee fails to provide alternative financial assurance within the 60-day period, the guarantor must submit to the Division that alternate financial assurance within 90 days of the cancellation notice.

(2) A guarantor must be one of the following persons:

(a) For a permittee or applicant that is a subsidiary company- The direct or higher-tier parent company of the applicant or permittee, or a company whose parent company is also the parent company of the applicant or permittee.

(b) A company with a substantial business relationship with the applicant or permittee.

(c) An individual with a substantial business relationship with the applicant or permittee (individual guarantor).

(3) A guarantor must meet the financial test requirements of subsections 66.10(1)(a)-(c).

(4) The permittee or applicant must submit to the Division the guarantor's financial statements for the latest completed fiscal year, in accordance with the following, as applicable:

(a) For a public company guarantor- A copy of the guarantor's financial statements and a copy of the independent certified public accountant's report on examination of the guarantor's financial statements for the latest completed fiscal year.

(b) For a private company guarantor- A copy of the guarantor's financial statements.

(c) For an individual guarantor- The guarantor's current Personal Financial Statement sent to the guarantor's bank, with an original signature.

(5) The permittee or applicant must submit to the Division a letter from the guarantor that meets the following requirements:

(a) The letter must state that the guarantor meets the conditions of subsections 66.11(2) and (3).

(b) The letter must include a statement that the permittee or applicant acknowledges that making a false, fictitious, or fraudulent statement in the letter is punishable under the criminal laws of Colorado as perjury under section 18-8-503, C.R.S.

(c) The letter must be worded as specified in Appendix J.

(d) If the guarantor is a company or an individual with a substantial business relationship with the applicant or permittee, the letter must describe this substantial business relationship.

(i) The Division may request additional information from such a company or individual regarding a substantial business relationship.

(e) The letter must have an original signature of one of the following persons, as applicable:

(i) For a public company guarantor- The signature of the company's chief financial officer.

(ii) For a private company guarantor- The signature of an officer of the company who has financial responsibility for the company and is authorized to bind the company.

(iii) For an individual guarantor- The signature of the individual.

(6) Reporting and other requirements

(a) Annual submittals- After the initial submission of the items specified in subsections 66.11 - (5), the permittee must annually demonstrate that the guarantor continues to meet the requirements of subsections 66.11 -(3) by submitting the following to the Division within 90 days after the fiscal year end for the guarantor:

(i) A letter that meets the following requirements of subsection 66.11 , as applicable to the guarantor.

(ii) The financial statements for the latest completed fiscal year in accordance with subsection 66.11 , as applicable to the guarantor.

(b) If the guarantor no longer meets the requirements of subsection 66.11 -(3), the permittee must provide alternate financial assurance within 60 days from the date of receiving notice from the guarantor or Division that the guarantor no longer meets the requirements of subsection 66.11 -(3). Such financial assurance must meet the requirements of subsections 61.13(4)(h)(iii)-(iv) of Regulation No. 61.

(i) If the permittee fails to provide alternate financial assurance within the 60-day period, the guarantor must provide such alternate financial assurance within the next 30 days.

(c) The Division may request reports of the financial condition of a guarantor at any time, in addition to the reports specified in subsection 66.11 . Such reports must be submitted to the Division within 30 days of the request.

(i) If the Division finds, on the basis of such reports or other information, that a guarantor no longer meets the requirements of subsections 66.11 -(3), the Division will so notify the permittee and guarantor in writing and request to meet with the permittee and guarantor to review the Division's finding.

(A) If the guarantor provides sufficient information to the Division to demonstrate to the Division's satisfaction that the requirements of subsections 66.11 -(3) are met, the Division will allow the permittee to maintain financial assurance by using the written guarantee instrument.

(B) If the guarantor cannot demonstrate to the Division's satisfaction that the requirements of subsections 66.11 -(3) can be met, the permittee must submit to the Division alternate financial assurance within 90 days after notification of such a finding. Such financial assurance must meet the requirements of subsections 61.13(4)(h)(iii)-(iv) of Regulation No. 61.

(7) The permittee is no longer required to meet the requirements of section 66.11 when either of the following occurs:

(a) The permittee substitutes alternate financial assurance that meets the requirements of subsections 61.13 -(iv) of Regulation No. 61; or,

(b) The permittee is released by the Division from the requirements of section 61.13(4)(h)(xiii).

(8) Confidential business information

(a) Any person, non-publically traded corporation, division of a corporation that does not file separate financial information, or other non-publically traded entity, may claim that certain information submitted to satisfy the written guarantee is confidential business information, if the following requirements are met:

(i) The person or entity has a reasonable good faith belief that the disclosure of such information would be detrimental to its competitive or business position;

(ii) Each page or portion of a page that is purported to be confidential business information is clearly marked as such by the person or entity;

(iii) The information purported to be confidential business information by the person or entity has not expired by its terms, nor been waived or withdrawn by such person or entity;

(iv) The information purported to be confidential business information is not, and has not been, reasonably obtainable without the person's or entity's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial proceedings);

(v) No statute or rule specifically requires the disclosure of the information;

(vi) The person or entity claiming that certain information is confidential business information states in a letter accompanying the business or financial information that the above requirements (i)-(v) have been and are being met for the information that the person or entity is claiming as confidential business information.

(b) If the requirements in subsections (3)(a)(i)-(vi) above are met, the Division will not evaluate such information as confidential business information, but will presume such information is confidential business information.

(c) The Division will separate from its publically available files information marked confidential business information and keep such information in files marked confidential business information.

(d) If the Division receives a request to review information that includes the purported confidential business information files, the Division will respond to such request by stating that the particular information requested that has been marked confidential business information is confidential business information which will not be made available to the requestor.

(e) If the requestor challenges the files identified as confidential business information, the Division will promptly notify the person or entity that has claimed confidential business information for such information. The Division will not release such information unless the person or entity claiming it as confidential business information agrees that it, or any portion of it, can be released or a court of competent jurisdiction orders that such information, or any portion of it, be released.

(9) The Division shall agree to termination of a written guarantee instrument when the provisions of sections 66.11(6)(b) and 66.11(7) have been satisfied.

5 CCR 1002-66.11