7 Del. Admin. Code § 1352-D-5.0

Current through Register Vol. 28, No. 7, January 1, 2025

Section 1352-D-5.0 - Self-Insurance

5.1 Requirements for Use of Self-Insurance to Comply with Financial Responsibility

5.1.1 To satisfy the requirements of PART D, Section 3.0 by Self-Insurance, the Owner, Operator, or Guarantor shall:

5.1.1.1 Meet the financial test in PART D, subsection 5.1.2 or PART D, subsection 5.1.3 based on year-end financial statements for the latest completed Financial Reporting Year; and,

5.1.1.2 Complete PART D, Section 21.0 Form A exactly as shown, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted; and,

5.1.1.3 Submit the completed PART D, Section 21.0, Form A to the Department, signed by the Chief Financial Officer of the Owner, Operator, or Guarantor, within 120 days of the close of each fiscal year.

5.1.2 Alternative I - Net Worth Test

5.1.2.1 The Owner, Operator, or Guarantor, shall have a tangible net worth of at least $10 million; and

5.1.2.2 The Owner, Operator, or Guarantor, shall have a tangible net worth of at least ten times the sum of the following:

5.1.2.2.1 The applicable annual aggregate amount required by PART D, Section 3.0 less the amount obtained through another mechanism or combination of mechanisms in accordance with PART D, Section 4.0, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

5.1.2.2.2 Any other liability coverage for which the Owner or Operator is using the test to demonstrate financial responsibility to the State or EPA, (this includes but is not limited to Subtitle C Hazardous waste facilities, SDWA hazardous waste injection wells, Subtitle I Underground Storage Tank facilities), and

5.1.2.3 The Owner, Operator, or Guarantor, shall either:

5.1.2.3.1 File financial statements annually with the U.S. Securities and Exchange Commission (SEC), the Energy Information Administration (EIA), or the Rural Utilities Service (RUS); or

5.1.2.3.2 Annually report the firm's tangible net worth to Dun & Bradstreet, and Dun & Bradstreet shall have assigned the firm a financial strength rating of 4A or 5A, and

5.1.2.4 The firm's year-end financial statements, if independently audited, cannot include an adverse auditor's opinion, a disclaimer of opinion, or a going concern qualification.

5.1.3 Alternative II - Net Working Capital Test

5.1.3.1 The Owner, Operator, or Guarantor shall have a tangible net worth of at least $10 million; and

5.1.3.2 The Owner, Operator, or Guarantor shall have a tangible net worth of six times the sum of the following:

5.1.3.2.1 The applicable annual aggregate amount required by PART D, Section 3.0 less the amount obtained through another mechanism or combination of mechanisms in accordance with PART D, Section 4.0, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

5.1.3.2.2 Any other liability coverage for which the Owner or Operator is using the test to demonstrate financial responsibility to the State or EPA, (this includes but is not limited to Subtitle C Hazardous Waste Facilities, SDWA Hazardous Waste Injection Wells, Subtitle I Underground Storage Tank facilities); and

5.1.3.3 The Owner, Operator, or Guarantor shall have either:

5.1.3.3.1 At least 90% of assets are in the United States, or

5.1.3.3.2 U.S. assets are at least 6 times the sum of the following:

5.1.3.3.2.1 The applicable annual aggregate amount required by PART D, Section 3.0 less the amount obtained through another mechanism or combination of mechanisms in accordance with PART D, Section 4.0, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

5.1.3.3.2.2 Any other liability coverage for which the Owner or Operator is using the test to demonstrate financial responsibility to the State or EPA, (this includes but is not limited to Subtitle C Hazardous Waste Facilities, SDWA Hazardous Waste Injection Wells, Subtitle I Underground Storage Tank facilities); and

5.1.3.4 The Owner, Operator, or Guarantor shall have either

5.1.3.4.1 Net working capital of at least 6 times the sum of the following:

5.1.3.4.1.1 The applicable annual aggregate amount required by PART D, Section 3.0 less the amount obtained through another mechanism or combination of mechanisms in accordance with PART D, Section 4.0, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

5.1.3.4.1.2 Any other liability coverage for which the Owner or Operator is using the test to demonstrate financial responsibility to the State or EPA, (this includes but is not limited to Subtitle C Hazardous Waste Facilities, SDWA Hazardous Waste Injection Wells, Subtitle I Underground Storage Tank facilities); or

5.1.3.4.2 A current Standard & Poor's bond rating of AAA, AA, A or BBB, or a current Moody's bond rating of Aaa, Aa, A or Baa for the most recent bond issuance, and

5.1.3.5 The fiscal year end financial statements of the Owner, Operator, or Guarantor, shall be independently audited, and cannot include an adverse auditor's opinion, a disclaimer of opinion, or a going concern qualification, and

5.1.3.6 If the financial statements of the Owner, Operator, or Guarantor are not submitted annually to the U.S. Securities and Exchange Commission (SEC), the Energy Information Administration (EIA) or the Rural Utilities Service (RUS), the Owner, Operator, or Guarantor using the Alternative II test, shall obtain a special report by an independent certified public accountant which contains the accountant's certification that there are no material differences between the financial data in the submission required under PART D, subsection 5.1.2.4 and the independently audited year-end financial statements and footnotes for the latest completed Financial Reporting Year.

5.1.4 If an Owner or Operator finds that he or she no longer meets the requirements of PART D, subsection 5.1, the Owner or Operator shall obtain alternative coverage within 150 days of the latest completed Financial Reporting Year.

5.1.5 The Department may require reports of financial condition at any time from the Owner, Operator, or Guarantor. If the Department finds, on the basis of such reports or other information, that the Owner, Operator, or Guarantor no longer meets the requirements of PART D, subsection 5.1, the Owner or Operator shall obtain alternate coverage within 30 days after notification by verifiable service of such a finding.

5.1.6 If the Owner and Operator fail to obtain alternate coverage within 150 days of finding that the Owner and Operator no longer meets the requirements of PART D, subsection 5.1, or within 30 days of notification by the Department that he or she no longer meets the requirements of PART D, subsection 5.1, the Owner or Operator shall notify the Secretary of such failure within 10 days.

7 Del. Admin. Code § 1352-D-5.0

20 DE Reg. 815 (4/1/2017)
27 DE Reg. 536 (1/1/2024) (Final)