7 Del. Admin. Code § 1351-F-2.0

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

Section 1351-F-2.0 - Financial Responsibility Mechanisms

2.1 Allowable Mechanisms and Combinations of Mechanisms

2.1.1 Except as provided by subsections 2.1.2 and 2.1.3 of this Section:

2.1.1.1 An Owner or Operator, including a Local Government Owner or Operator, may use any one or combination of the mechanisms listed in Part F, subsections 2.2 through 2.7 and 2.12, inclusive, to demonstrate financial responsibility under Part F for one or more UST Systems, and

2.1.1.2 A Local Government Owner or Operator may use any one or combination of the mechanisms listed in Part F, subsections 2.8 through 2.11, inclusive, to demonstrate financial responsibility under this Part for one or more UST Systems.

2.1.2 An Owner or Operator may use a guarantee or surety bond to establish financial responsibility only if the State's Attorney General has submitted a written statement to the Department that a guarantee or surety bond executed as described in this Part is a legally valid and enforceable obligation in the State of Delaware.

2.1.3 An Owner or Operator may use self-insurance in combination with a guarantee only if, for the purpose of meeting the requirements of the financial test under this rule, the financial statements of the Owner or Operator are not consolidated with the financial statements of the Guarantor.

2.1.4 Except as provided in Part F, subsection 2.1.5, if the Owner or Operator uses separate mechanisms or separate combinations of mechanisms to demonstrate financial responsibility for taking Corrective Action and compensating third parties for Bodily Injury and Property Damage caused by Accidental Releases the amount of financial responsibility provided by the combination of mechanisms shall be in the full amount specified in Part F, subsection 1.3.

2.1.5 If an Owner or Operator uses separate mechanisms or separate combinations of mechanisms to demonstrate financial responsibility for different UST Systems, the annual aggregate required shall be based on the number of Tanks covered by each such separate mechanism or combination of mechanisms.

2.1.6 Where an Owner or Operator uses a combination of separate mechanisms to cumulatively demonstrate financial responsibility, the mechanisms shall clearly and expressly state the order and priority of the mechanisms in paying for Corrective Action or compensation of third parties. Such order and priority shall be consistent with all regulatory requirements for demonstrating financial responsibility.

2.2 Self-Insurance

2.2.1 To satisfy the requirements of Part F, subsection 1.3 by utilizing self-insurance, the Owner, Operator, or Guarantor shall:

2.2.1.1 Submit documentation that the requirements of either the financial test in Part F, subsection 2.2.2, Alternative I Net Worth Test, or Part F, subsection 2.2.3. Alternative II Net Working Capital Test, are met based on year-end financial statements for the latest completed Financial Reporting Year, utilizing a form provided by the Department, as found in subsection 3.1, Form A of these Regulations, to provide the required documentation; and

2.2.1.2 Submit a letter from the Chief Financial Officer, utilizing a form provided by the Department, as found in subsection 3.1, Form A of these Regulations, worded exactly as shown, except that the instructions in brackets are to be replaced by the relevant information and the brackets deleted; and

2.2.1.3 Submit the documentation required in Part F, subsections 2.2.1.1 and 2.2.1.2 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.

2.2.2 Alternative I Financial Test- Net Worth Test Requirements

2.2.2.1 The Owner, Operator, or Guarantor, shall have a Tangible Net Worth of at least $10 million; and

2.2.2.2 The Owner, Operator, or Guarantor, shall have a Tangible Net Worth of at least ten times the sum of the following:

2.2.2.2.1 The total of the applicable Annual Aggregate amount required by Part F, subsection 1.3 of these Regulations based on the number of UST Systems for which a financial test is used to demonstrate financial responsibility to the Department under Part F, less the amount obtained through another mechanism or combination of mechanisms in accordance with Part F, subsection 2.1 of these Regulations; and

2.2.2.2.2 The sum of the Corrective Action cost estimates, the current closure and post-closure care cost estimates, current plugging and abandonment cost estimates and any other liability coverage for the which the Owner or Operator is using a financial 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 and Aboveground Storage Tanks); and

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

2.2.2.3.1 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

2.2.2.3.2 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

2.2.2.4 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.

2.2.3 Alternative II Financial Test - Net Working Capital Test Requirements

2.2.3.1 The Owner, Operator, or Guarantor shall have a Tangible Net Worth of at least $10 million; and

2.2.3.2 The Owner, Operator, or Guarantor shall have a Tangible Net Worth of 6 times the sum of the following:

2.2.3.2.1 The applicable Annual Aggregate amount required by Part F, subsection 1.3 less the amount obtained through another mechanism or combination of mechanisms in accordance with Part F, subsection 2.1, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

2.2.3.2.2 The sum of the Corrective Action cost estimates, the current closure and post-closure care cost estimates, current plugging and abandonment cost estimates and any other liability coverage for the which the Owner or Operator is using a financial 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 and aboveground storage tanks); and

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

2.2.3.3.1 At least ninety 90% of assets in the United States; or

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

2.2.3.3.2.1 The applicable Annual Aggregate amount required by Part F. subsection 1.3 less the amount obtained through another mechanism or combination of mechanisms in accordance with Part F, subsection 2.1, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

2.2.3.3.2.2 The sum of the Corrective Action cost estimates, the current closure and post-closure care cost estimates, current plugging and abandonment cost estimates and any other liability coverage for the which the Owner or Operator is using a financial test to demonstrate financial responsibility to the State or EPA, (this includes Subtitle C Hazardous Waste facilities, SDWA hazardous waste injection wells and aboveground storage tanks); and

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

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

2.2.3.4.1.1 The applicable Annual Aggregate amount required by Part F, subsection 1.3 less the amount obtained through another mechanism or combination of mechanisms in accordance with Part F, subsection 2.1, for which a financial test is used to demonstrate financial responsibility to the Department under this Section; and

2.2.3.4.1.2 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 Subtitle C Hazardous Waste Facilities, SDWA Hazardous Waste Injection Wells, Subtitle I Underground Storage Tank Facilities); or

2.2.3.4.2 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.

2.2.3.5 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.

2.2.3.6 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 F, subsection 2.2.1.3 and the independently audited year-end financial statements and footnotes for the latest completed Financial Reporting Year.

2.2.3.7 If an Owner or Operator finds that he or she no longer meets the Requirements of Part F, subsection 2.2, the Owner or Operator shall obtain alternative coverage within 150 Days of the latest completed Financial Reporting Year.

2.2.3.8 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 F, subsection 2.2, the Owner or Operator shall obtain alternate coverage within 30 Days after notification by Verifiable Service of such a finding.

2.2.3.9 If the Owner or Operator fails to obtain alternate financial assurance within 150 Days of finding that he or she no longer meets the Requirements of Part F, subsection 2.2, or within 30 Days of notification by the Department that he or she no longer meets the Requirements of Part F, subsection 2.2, the Owner or Operator shall notify the Department of such failure by Verifiable Service within 10 Days.

2.3 Guarantee

2.3.1 To satisfy the requirements of Part F, subsection 1.3 of these Regulations the Owner or Operator may obtain a guarantee that conforms to the requirements of this Section.

2.3.2 The Guarantor shall be a business entity that:

2.3.2.1 Possesses a Controlling Interest in the Owner or Operator; or

2.3.2.2 Possesses a Controlling Interest in a firm that has a Controlling Interest in the Owner or Operator; or

2.3.2.3 Is an affiliate which is controlled through stock ownership by a common parent firm that possesses a Controlling Interest in the Owner or Operator; or

2.3.2.4 Is engaged in a Substantial Business Relationship with the Owner or Operator and is issuing the guarantee as an act incident to that business relationship.

2.3.3 The Guarantor shall:

2.3.3.1 Comply with the requirements of Part F, subsection 2.2 of these Regulations; and

2.3.3.2 Submit a Guarantee utilizing a form provided by the Department, as found in Part F, subsection 3.2, Form B of these Regulations, worded exactly as shown, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted; and

2.3.3.3 Submit the completed Guarantee and the required submissions of Part F, subsection 2.2 of these Regulations to the Department; and

2.3.3.4 Provide the Owner or Operator with copies of their submissions under Part F, subsection 2.2 of these Regulations.

2.3.4 If the Guarantor fails to meet the requirements of the financial test at the end of any Financial Reporting Year, within 120 Days of the end of that Financial Reporting Year the Guarantor shall send by Verifiable Service, before cancellation or non renewal of the guarantee, notice to the Owner or Operator and to the Department. The guarantee will terminate no less than 120 Days after the date the Owner or Operator receives the notification, as evidenced by Verifiable Service. The Owner or Operator shall obtain alternative coverage as specified in Part F, subsection 2.15 of these Regulations.

2.3.5 If the Department notifies the Guarantor that he no longer meets the Requirements of Part F, subsection 2.2.1.1 of these Regulations, the Guarantor shall notify the Owner or Operator by Verifiable Service within 10 Days of receiving such notification from the Department. The guarantee will terminate no less than 120 Days after the date the Owner or Operator receives the notification, as evidenced by Verifiable Service. The Owner or Operator shall obtain alternative coverage as specified in Part F, subsection 2.14 of these Regulations.

2.3.6 The Owner or Operator who uses a guarantee to satisfy the Requirements of Part F, subsection 1.3 of these Regulations shall also establish a standby trust fund at the same time that the guarantee is obtained. Under the terms of the guarantee, all amounts paid by the Guarantor under the guarantee will be deposited directly into the standby trust fund in accordance with instructions from the Department under Part F, subsection 2.15 of these Regulations. This standby trust fund shall meet the requirements specified in Part F, subsection 2.12 of these Regulations.

2.3.7 An Owner or Operator may use a guarantee to establish financial responsibility only if the State's Attorney General has submitted a written statement to the Department that a guarantee executed as described in this Section is a legally valid and enforceable obligation in the State of Delaware.

2.4 Insurance and Risk Retention Group Coverage

2.4.1 An Owner or Operator may satisfy the requirements of Part F, subsection 1.3 of these Regulations by obtaining liability insurance that conforms to the requirements of this Section from a qualified insurer or risk retention group. Such insurance may be in the form of a separate insurance policy or an endorsement to an existing insurance policy.

2.4.2 The Owner or Operator shall submit an amendment to an insurance policy utilizing a form provided by the Department, as found in Part F, subsection 3.3, Form C of these Regulations, worded exactly as shown, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted or shall submit a certificate of insurance utilizing a form provided by the Department, as found in Part F, subsection 3.4, Form D of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.4.3 Each insurance policy shall be issued by an insurer or a risk retention group that, at a minimum, is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in one or more States and has a current Standard & Poor's rating of AAA, AA, A or BBB, or a current Moody's rating of Aaa, Aa, A or Baa, or current A.M Best rating of A++, A+, A, A-, B++ or B+ or equivalent.

2.4.4 Exclusions for payments of claims related to voluntary UST System removals and voluntary UST System Site Assessments and investigations do not meet the financial responsibility requirements of 40 CFR 280, Subpart H. Insurance policies submitted to meet the requirements of Part F, subsection 1.3 shall not contain voluntary exclusions.

2.4.5 If self-insured retentions are included as part of an insurance policy, it shall only cover the portion of a policy from the inception date of the policy back to the retroactive date of the policy. Self-insured retentions will be considered a partial mechanism and such retentions are acceptable with a combination of mechanisms to comply with Part F, subsection 1.3.

2.5 Surety Bond

2.5.1 An Owner or Operator may satisfy the requirements of Part F, subsection 1.3 of these Regulations by obtaining a surety bond that conforms to the requirements of this Section. The surety company issuing the bond shall be among those listed as acceptable sureties on federal bonds in the latest Circular 570 of the U.S. Department of the Treasury.

2.5.2 The Owner or Operator shall submit a surety bond utilizing a form provided by the Department, as found in Part F, subsection 3.5, Form E of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.5.3 Under the terms of the bond, the surety will become liable on the bond obligation when the Owner or Operator fails to perform as guaranteed by the bond. In all cases, the surety's liability is limited to the levels of financial responsibility required by Part F, subsection 1.3 of these Regulations.

2.5.4 The Owner or Operator who uses a surety bond to satisfy the requirements of Part F, subsection 1.3 of these Regulations shall also establish a standby trust fund when the surety bond is acquired. Under the terms of the bond, all amounts paid by the surety under the bond will be deposited directly into the standby trust fund in accordance with instructions from the Department in accordance with Part F, subsection 2.15 of these Regulations. This standby trust fund shall meet the requirements specified in Part F, subsection 2.12 of these Regulations.

2.5.5 An Owner or Operator may use a surety bond to establish financial responsibility only if the State's Attorney General has submitted a written statement to the Department that a surety bond executed as described in this Section is a legally valid and enforceable obligation in the State of Delaware.

2.5.6 The surety(ies) company may cancel the bond by sending notice of cancellation to the Owner or Operator and the Department by Verifiable Service, provided, however, that cancellation shall not occur during the 120 Days beginning on the date of receipt of the notice of cancellation by the Owner and Operator as evidenced by Verifiable Service. The Owner or Operator shall obtain alternative coverage as specified in Part F, subsection 2.15 of these Regulations.

2.5.7 If the Department notifies the Owner or Operator that the surety(ies) company no longer meets the requirements of this Section, the Owner or Operator shall obtain alternative coverage as specified in Part F, subsection 2.15 of these Regulations.

2.6 Letter of Credit

2.6.1 An Owner or Operator may satisfy the requirements of Part F, subsection 1.3 of these Regulations by obtaining an irrevocable standby letter of credit that conforms to the Requirements of this Section and is issued by an institution that has authority to issue letters of credit in the State of Delaware and whose letter of credit operations are regulated and examined by a federal or State agency.

2.6.2 The Owner or Operator shall submit an irrevocable standby letter of credit utilizing a form provided by the Department, as found in Part F, subsection 3.6, Form F of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted. To meet the Requirements of this Section, the letter of credit shall list the State of Delaware Department of Natural Resources and Environmental Control as the sole beneficiary. Naming multiple states as the beneficiary is not acceptable.

2.6.3 An Owner or Operator who uses a letter of credit to satisfy the Requirements of Part F, subsection 1.3 of these Regulations shall also establish a standby trust fund when the letter of credit is acquired. Under the terms of the letter of credit, all amounts paid pursuant to a draft by the Department will be deposited by the issuing institution directly into the standby trust fund in accordance with instructions from the Department under Part F, subsection 2.15 of these Regulations. This standby trust fund shall meet the requirements specified in Part F, subsection 2.12 of these Regulations.

2.6.4 The letter of credit shall be irrevocable with a term specified by the issuing institution. The letter of credit shall provide that credit be automatically renewed from the same term as the original term, unless, at least 120 Days before the current expiration date, the issuing institution notifies the Owner or Operator by Verifiable Service of its decision not to renew the letter of credit. Under the terms of the letter of credit, the 120 Days will begin on the date when the Owner or Operator receives the notice, as evidenced by the Verifiable Service.

2.7 Trust Fund

2.7.1 An Owner or Operator may satisfy the requirements of Part F, subsection 1.3 of these Regulations by establishing a trust fund that conforms to the Requirements of this Section. The trustee shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal agency or an agency of the State in which the fund is established.

2.7.2 The Owner or Operator shall submit a trust agreement, utilizing a form provided by the Department, as found in Part F, subsection 3.7, Form G of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted and shall be accompanied by a formal certification of acknowledgment as specified in Part F, subsection 3.7, Form G of these Regulations.

2.7.3 The trust fund, when established, shall be funded for the full required amount of coverage, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining required coverage.

2.7.4 If the value of the trust fund is greater than the required amount of coverage, the Owner or Operator may submit a written request by Verifiable Service to the Department for release of the excess.

2.7.5 If other financial assurance as specified in this Section is substituted for part of the trust fund, the Owner or Operator may submit a written request by Verifiable Service to the Department for release of the excess.

2.7.6 Within 60 Days after receiving a request from the Owner or Operator for release of funds as specified in Part F, subsections 2.7.4 or 2.7.5 of these Regulations, the Department will instruct the trustee to release to the Owner or Operator such funds as the Department specifies in writing by Verifiable Service.

2.8 Local Government Bond Rating Test

2.8.1 A general purpose Local Government Owner or Operator or Local Government serving as a Guarantor may satisfy the requirements of Part F, subsection 1.3 of these Regulations by having a currently outstanding issue or issues of general obligation bonds of at least the minimum Annual Aggregate amount required in Part F, subsection 1.3 of these Regulations excluding refunded obligations, with a Moody's rating of Aaa, Aa, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or BBB. Where a Local Government has multiple outstanding issues, or where a Local Government's bonds are rated by both Moody's and Standard & Poor's, the lowest rating shall be used to determine eligibility. Bonds that are backed by credit enhancement other than municipal bond insurance shall not be considered in determining the amount of applicable bonds outstanding.

2.8.2 A Local Government Owner or Operator or Local Government serving as a Guarantor that is not a general-purpose Local Government and does not have the legal authority to issue general obligation bonds may satisfy the requirements of Part F, §1.3 of these Regulations by:

2.8.2.1 Having a currently outstanding issue or issues of revenue bonds of at least $1,000,000 excluding refunded issues; and

2.8.2.2 Having a Moody's rating of Aaa, Aa, A, or Baa, or a Standard & Poor's rating of AAA, AA, A, or BBB as the lowest rating for any rated revenue bond issued by the Local Government. Where bonds are rated by both Moody's and Standard & Poor's, the lower rating for each bond shall be used to determine eligibility. Bonds that are backed by credit enhancement shall not be considered in determining the amount of applicable bonds outstanding.

2.8.3 The Local Government Owner or Operator or Guarantor using the Local Government bond rating test shall maintain a copy of its bond rating published within the last 12 months by Moody's or Standard & Poor's.

2.8.4 To demonstrate that it meets the Local Government bond rating test, the Chief Financial Officer of a general purpose Local Government Owner, Operator or Guarantor shall submit a letter signed by the Chief Financial Officer, utilizing a form provided by the Department, as found in Part F, subsection 3.10, Form J of these Regulations, worded exactly as shown, except that instructions in brackets are to be replaced by the relevant information and the brackets deleted.

2.8.5 To demonstrate that it meets the Local Government bond rating test, the Chief Financial Officer of a Local Government Owner, Operator, or Guarantor other than a general purpose government, shall submit a letter signed by the Chief Financial Officer, utilizing a form provided by the Department, as found in Part F, subsection 3.11, Form K of these Regulations, worded exactly as shown, except that instructions in brackets are to be replaced by the relevant information and the brackets deleted.

2.8.6 The Department may require reports of financial condition at any time from the Local Government Owner, Operator, or Local Government Guarantor. If the Department finds, on the basis of such reports or other information, that the Local Government Owner, Operator, or Guarantor, no longer meets the Local Government bond rating test Requirements of this Section, the Local Government Owner or Operator shall obtain alternative coverage within 30 Days after notification of such a finding.

2.8.7 If a Local Government Owner or Operator using the bond rating test to provide financial assurance finds that it no longer meets the bond rating test requirements, the Local Government Owner or Operator shall obtain alternative coverage within 150 Days of the Change In Service.

2.8.8 If a Local Government Owner or Operator fails to obtain alternate assurance within 150 Days of finding that it no longer meets the requirements of the bond rating test or within 30 Days of notification by the Department that it no longer meets the requirements of the bond rating test, the Owner or Operator must notify the Department of such failure within 10 Days.

2.9 Local Government Financial Test

2.9.1 A Local Government Owner or Operator may satisfy the requirements of Part F, subsection 1.3 of these Regulations by passing the financial test specified in this Section. To be eligible to use the financial test, the Local Government Owner or Operator shall have the ability and authority to assess and levy taxes or to freely establish fees and charges. To pass the Local Government financial test, the Owner or Operator shall meet the criteria of Part F, subsections 2.9.3 and 2.9.4 of these Regulations based on year-end financial statements for the latest completed Financial Reporting Year.

2.9.2 The Local Government Owner or Operator shall have the following information available, as shown in the year-end financial statements for the latest completed fiscal year:

2.9.2.1 Total Revenues: Consists of the sum of general fund operating and non operating revenues including net local taxes, licenses and permits, fines and forfeitures, revenues from use of money and property, charges for services, investment earnings, sales (property, publications, etc.), intergovernmental revenues (restricted and unrestricted), and total revenues from all other governmental funds including enterprise, debt service, capital projects, and special revenues, but excluding revenues to funds held in a trust or agency capacity. For purposes of this test, the calculation of total revenues shall exclude all transfers between funds under the direct control of the Local Government using the financial test (interfund transfers), liquidation of investments, and issuance of debt.

2.9.2.2 Total Expenditures: Consists of the sum of general fund operating and non operating expenditures including public safety, public utilities, transportation, public works, environmental protection, cultural and recreational, community development, revenue sharing, employee benefits and compensation, office management, planning and zoning, capital projects, interest payments on debt, payments for retirement of debt principal, and total expenditures from all other governmental funds including enterprise, debt service, capital projects, and special revenues. For purposes of this test, the calculation of total expenditures shall exclude all transfers between funds under the direct control of the Local Government using the financial test (interfund transfers).

2.9.2.3 Local Revenues: Consists of total revenues (as defined in Part F, subsection 2.9.2.1 of these Regulations) minus the sum of all transfers from other governmental entities, including all monies received from Federal, State, or Local Government sources.

2.9.2.4 Debt Service: Consists of the sum of all interest and principal payments on all long-term credit obligations and all interest-bearing short-term credit obligations. Includes interest and principal payments on general obligation bonds, revenue bonds, notes, mortgages, judgments, and interest bearing warrants. Excludes payments on noninterest bearing short term obligations, interfund obligations, amounts owed in a trust or agency capacity, and advances and contingent loans from other governments.

2.9.2.5 Total Funds: Consists of the sum of cash and investment securities from all funds, including general, enterprise, debt service, capital projects, and special revenue funds, but excluding employee retirement funds, at the end of the Local Government's Financial Reporting Year. Includes Federal securities, Federal agency securities, State and Local Government securities, and other securities such as bonds, notes and mortgages. For purposes of this test, the calculation of total funds shall exclude agency funds, private trust funds, accounts receivable, value of real property, and other non security assets.

2.9.2.6 Population: Consists of the number of people in the area served by the Local Government.

2.9.3 The Local Government's year-end financial statements, if independently audited, cannot include an adverse auditor's opinion or a disclaimer of opinion. The Local Government cannot have outstanding issues of general obligation or revenue bonds that are rated as less than investment grade.

2.9.4 The Local Government Owner or Operator shall have a letter signed by the Chief Financial Officer, utilizing a form provided by the Department, as found in Part F, subsection 3.12, Form L of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.9.5 To demonstrate that it meets the financial test under Part F, subsection 2.9.2 of these Regulations, within 120 days of the close of each Financial Reporting Year as defined by the twelve month period for which financial statements used to support the financial test are prepared, the Chief Financial Officer of the Local Government Owner or Operator, shall sign and submit a letter, utilizing a form provided by the Department, as found in Part F, subsection 3.12, Form L of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.9.6 If a Local Government Owner or Operator using the test to provide financial assurance finds that it no longer meets the requirements of the financial test based on the year-end financial statements, the Owner or Operator shall obtain alternative coverage within 150 Days of the end of the year for which financial statements have been prepared.

2.9.7 The Department may require reports of financial condition at any time from the Local Government Owner or Operator. If the Department finds, on the basis of such reports or other information, that the Local Government Owner or Operator no longer meets the financial test requirements of Part F, subsections 2.9.2 through 2.9.5 of these Regulations, the Owner or Operator shall obtain alternate coverage within 30 Days after notification of such a finding.

2.9.8 If the Local Government Owner or Operator fails to obtain alternate assurance within 150 Days of finding that it 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 it no longer meets the requirements of the financial test, the Owner or Operator shall notify the Department of such failure within 10 Days.

2.10 Local Government Guarantee

2.10.1 A Local Government Owner or Operator may satisfy the requirements of Part F, subsection 1.3 of these Regulations by obtaining a guarantee that conforms to the requirements of this Section. The Guarantor shall be either the State in which the Local Government Owner or Operator is located or a Local Government having a Substantial Governmental Relationship with the Owner or Operator and issuing the guarantee as an act incident to that relationship. A Local Government acting as the Guarantor shall:

2.10.1.1 Demonstrate that it meets the bond rating test requirement of Part F, subsection 2.8 and deliver a copy of the completed Chief Financial Officer's letter as stipulated in Part F, subsection 2.8.4 of these Regulations to the Local Government Owner or Operator; or

2.10.1.2 Demonstrate that it meets the worksheet test requirements of Part F, subsection 2.9 of these Regulations and deliver a copy of the completed Chief Financial Officer's letter as stipulated in Part F, subsection 2.8.5 of these Regulations to the Local Government Owner or Operator; or

2.10.1.3 Demonstrate that it meets the Local Government fund requirements of Part F, subsections 2.11.1.1, 2.11.1.2, or 2.11.1.3 of these Regulations and deliver a copy of the completed Chief Financial Officer's letter as stipulated in Part F subsection 2.11.2 of these Regulations to the Local Government Owner and Operator.

2.10.2 If the Local Government Guarantor is unable to demonstrate financial assurance under any of the mechanisms in Part F, subsections 2.8, 2.9, or 2.11 of these Regulations, at the end of the Financial Reporting Year, the Guarantor shall send by Verifiable Service, before cancellation or non renewal of the guarantee, notice to the Owner or Operator and to the Department. The guarantee will terminate no less than 120 Days after the date the Owner or Operator receives the notification, as evidenced by Verifiable Service. The Owner or Operator shall obtain alternative coverage as specified in Part F, subsection 2.14 of these Regulations.

2.10.3 The Owner or Operator shall submit a guarantee agreement, utilizing a form provided by the Department, as found in Part F, subsection 3.14, Form N, Part F, subsection 3.15, Form O or Part F, subsection 3.16, Form P of these Regulations, depending on which of the following alternative guarantee arrangements is selected:

2.10.3.1 If, in the default or incapacity of the Owner or Operator, the Guarantor guarantees to fund a standby trust as directed by the Department, the guarantee shall be worded exactly as specified in Part F, subsection 3.13, Form M or Part F, subsection 3.14, Form N of these Regulations, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.10.3.2 If, in the default or incapacity of the Owner or Operator, the Guarantor guarantees to make payments as directed by the Department for taking Corrective Action or compensating third parties for Bodily Injury and Property Damage, the guarantee shall be worded exactly as specified in Part F, subsection 3.15, Form O or subsection 3.16, Form P of these Regulations, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.10.3.3 If the Guarantor is a State, the Local Government guarantee with standby trust shall be worded exactly as specified in Part F, subsection 3.13, Form M of these Regulations, except that instructions in brackets are to be replaced with relevant information and the brackets deleted.

2.10.3.4 If the Guarantor is a Local Government, the Local Government guarantee with standby trust shall be worded exactly as specified in Part F, subsection 3.14, Form N of these Regulations, except that instructions in brackets are to be replaced with relevant information and the brackets deleted.

2.10.3.5 If the Guarantor is a State, the Local Government guarantee without standby trust shall be worded exactly as specified in Part F, subsection 3.15, Form O of these Regulations, except that instructions in brackets are to be replaced with relevant information and the brackets deleted.

2.10.3.6 If the Guarantor is a Local Government, the Local Government guarantee without standby trust shall be worded exactly as specified in Part F, subsection 3.16, Form P of these Regulations, except that instructions in brackets are to be replaced with relevant information and the brackets deleted.

2.10.4 A Local Government Owner or Operator using the Local Government guarantee under Part F, subsection 2.10, where the Guarantor's demonstration of financial responsibility relies on the bond rating test under Part F, subsection 2.8 of these Regulations shall maintain a copy of the Guarantor's bond rating published within the last 12 months by Moody's or Standard & Poor's.

2.10.5 A Local Government Owner or Operator using the Local Government guarantee supported by the Local Government fund as prescribed in Part F, subsection 2.11 of these Regulations, shall maintain a copy of the Guarantor's year-end financial statements for the most recent completed Financial Reporting Year showing the amount of the fund.

2.11 Local Government Fund

2.11.1 A Local Government Owner or Operator may satisfy the requirements of Part F, subsection 1.3 by establishing a dedicated fund account that conforms to the requirements of this Section. Except as specified in Part F, subsection 2.11.1.2 of these Regulations, a dedicated fund may not be commingled with other funds or otherwise used in normal operations. A dedicated fund will be considered eligible if it meets one of the following requirements:

2.11.1.1 The fund is dedicated by State constitutional provision, or Local Government statute, charter, ordinance, or order to pay for taking Corrective Action and for compensating third parties for Bodily Injury and Property Damage caused by Accidental Releases arising from the operation of UST Systems and is funded for the full amount of coverage required under Part F, subsection 1.3 of these Regulations, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage; or

2.11.1.2 The fund is dedicated by State constitutional provision, or Local Government statute, charter, ordinance, or order as a contingency fund for general emergencies, including taking Corrective Action and compensating third parties for Bodily Injury and Property Damage caused by Accidental Releases arising from the operation of UST Systems, and is funded for five times the full amount of coverage required under Part F, subsection 1.3 of these Regulations, or funded for part of the required amount of coverage and used in combination with other mechanism(s) that provide the remaining coverage. If the fund is funded for less than five times the amount of coverage required under Part F, subsection 1.3 of these Regulations, the amount of financial responsibility demonstrated by the fund shall not exceed one-fifth the amount in the fund; or

2.11.1.3 The fund is dedicated by State constitutional provision, or Local Government statute, charter, ordinance or order to pay for taking corrective action and for compensating third parties for Bodily Injury and Property Damage caused by Accidental Releases arising from the operation of UST Systems. A payment is made to the fund once every year for seven years until the fund is fully funded. This seven year period is hereafter referred to as the "pay in period". The amount of each payment shall be determined by this formula: (TF-CF)/Y, where TF is the total required financial assurance for the Owner or Operator, CF is the current amount in the fund, and Y is the number of years remaining in the pay in period, and

2.11.1.3.1 The Local Government Owner or Operator has available bonding authority, approved through voter referendum (if such approval is necessary prior to the issuance of bonds), for an amount equal to the difference between the required amount of coverage and the amount held in the dedicated fund. This bonding authority shall be available for taking Corrective Action and for compensating third parties for Bodily Injury and Property Damage caused by Accidental Releases arising from the operation of UST Systems, or

2.11.1.3.2 The Local Government Owner or Operator has a letter signed by the appropriate State Attorney General stating that the use of the bonding authority will not increase the Local Government's debt beyond the legal debt ceilings established by the relevant State laws. The letter shall also state that prior voter approval is not necessary before use of the bonding authority.

2.11.2 To demonstrate that it meets the requirements of the Local Government fund, the Chief Financial Officer of the Local Government Owner or Operator or Guarantor, shall submit a letter to the Department, utilizing a form provided by the Department, found in Part F, subsection 3.17, Form Q of these Regulations, worded exactly as shown, except that instructions in brackets shall be replaced with the relevant information and the brackets deleted.

2.11.3 An Owner or Operator using a Local Government fund under Part F, subsection 2.11 of these Regulations shall maintain the following documents:

2.11.3.1 A copy of the State constitutional provision or Local Government statute, charter, ordinance, or order dedicating the fund; and

2.11.3.2 Year-end financial statements for the most recent completed Financial Reporting Year showing the amount in the fund. If the fund is established under Part F, subsection 2.11.1.3 of these Regulations using incremental funding backed by bonding authority, the financial statements shall show the previous year's balance, the amount of funding during the year, and the closing balance in the fund; and

2.11.3.3 If the fund is established under Part F, subsection 2.11.1.3 of these Regulations using incremental funding backed by bonding authority, the Owner or Operator shall also maintain documentation of the required bonding authority, including either the results of voter referendum under Part F, subsection 2.11.1.3.1 of these Regulations, or attestation by the State Attorney General as specified under Part F, subsection 2.11.1.3.2 of these Regulations.

2.12 Standby Trust Fund

2.12.1 An Owner or Operator using any one of the mechanisms authorized by Part F, subsections 2.3, 2.5, 2.6, and 2.7 of these Regulations shall establish a standby trust fund when the mechanism is acquired. The trustee of the standby trust fund shall be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by an agency of the State in which the fund is established.

2.12.2 The Owner or Operator shall submit a standby trust agreement to the Department, utilizing a form provided by the Department, as found in Part F, subsection 3.8 Form H of these Regulations, worded exactly as specified except that instructions in brackets are to be replaced with the relevant information and the brackets deleted.

2.12.3 The Department will instruct the trustee to refund the balance of the standby trust fund to the Provider of Financial Assurance if the Department determines that no additional Corrective Action costs or third party liability claims will occur as a result of a Release covered by the financial assurance mechanism for which the standby trust fund was established.

2.12.4 An Owner or Operator may establish one trust fund as the depository mechanism for all funds assured in compliance with this Part.

2.13 Substitution of Financial Assurance Mechanisms

2.13.1 An Owner or Operator may substitute any alternate financial assurance mechanisms as specified in this Part, provided that at all times the Owner or Operator maintains an effective financial assurance mechanism or combination of mechanisms that satisfies the Requirements of Part F, subsection 1.3 of these Regulations.

2.13.2 After obtaining alternate financial assurance as specified in this Part, an Owner or Operator may cancel a financial assurance mechanism by providing notice as evidenced by Verifiable Service, to the Provider of Financial Assurance and submitting a copy of such notice to the Department.

2.14 Cancellation or Non Renewal, Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance

2.14.1 Cancellation or Non-Renewal:

2.14.1.1 Except as otherwise provided, a Provider of Financial Assurance may cancel or fail to renew an assurance mechanism by sending a notice of Termination by Verifiable Service to the Owner or Operator and the Department, subject to the following:

2.14.1.1.1 Termination of a Local Government guarantee, a guarantee, a surety bond or a letter of credit may not occur until one hundred twenty (120) Days after the date on which the Owner or Operator receives the notice of Termination, as evidenced by Verifiable Service.

2.14.1.1.2 Termination of insurance or risk retention group coverage, except for non payment or misrepresentation by the insured, or State funded assurance may not occur until 60 Days after the date on which the Owner or Operator and the Department receives the notice of Termination, as evidenced by Verifiable Service.

2.14.1.1.3 Termination for non payment of premium or misrepresentation by the insured may not occur until a minimum of 10 Days after the date on which the Owner or Operator receives the notice of Termination, as evidenced by Verifiable Service.

2.14.1.1.4 The Owner or Operator shall notify the Department within 10 Days upon receiving notification of cancellation or non-renewal subject to the Requirements of Part F, subsection 2.14.1 of these Regulations.

2.14.1.1.5 In the event of Termination or nonrenewal of liability insurance coverage used to meet the financial responsibility requirements, the insurer shall notify the Department of Termination or nonrenewal not more than 10 Days after the notice of Termination or nonrenewal. The notice shall state the name and address of the insured, the date of Termination or nonrenewal, the address(es) of the Facility(ies) previously insured and reason for Termination or nonrenewal.

2.14.1.2 If a Provider of Financial Assurance cancels or fails to renew for reasons other than the incapability of the provider as specified in Part F, subsection 2.14.2 of these Regulations, the Owner or Operator shall obtain alternate coverage within 60 Days after receipt of the notice of Termination. If the Owner or Operator fails to obtain alternate coverage within 60 Days after receipt of the notice of Termination, the Owner or Operator shall notify the Department of such failure within 10 Days and submit the following to the Department:

2.14.1.2.1 The name and address of the Provider of Financial Assurance; and

2.14.1.2.2 The effective date of Termination; and

2.14.1.2.3 The evidence of the financial assurance mechanism subject to the Termination maintained in accordance with Part F, subsection 1.1.7 of these Regulations.

2.14.2 Bankruptcy or Other Incapacity of Owner or Operator or Provider of Financial Assurance

2.14.2.1 Within 10 Days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming an Owner or Operator as debtor, the Owner or Operator shall notify the Department by Verifiable Service of such commencement and shall submit the appropriate documentation as referenced in Part F, subsections 2.2 through 2.12 and Forms A-Q of these Regulations demonstrating current compliance with the financial responsibility requirements of Part F.

2.14.2.2 Within 10 Days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming a Guarantor providing financial assurance as debtor, such Guarantor shall notify the Owner or Operator as required under the terms of the guarantee and the Department by Verifiable Service of such commencement.

2.14.2.3 Within 10 Days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming a Local Government Owner or Operator as debtor, the Local Government Owner or Operator shall notify the Department by Verifiable Service of such commencement and shall submit the appropriate documentation as referenced in Part F, subsections 2.2 through 2.12 and Forms A-Q of these Regulations demonstrating current compliance with the financial responsibility requirements of Part F.

2.14.2.4 Within 10 Days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming a Guarantor providing a Local Government financial assurance as debtor, such Guarantor shall notify the Local Government Owner or Operator as required under the terms of the guarantee and the Department by Verifiable Service of such commencement.

2.14.2.5 Within 10 Days after the suspension or revocation of the authority of a Provider of Financial Assurance to issue a financial assurance mechanism, such provider shall notify the Owner or Operator by Verifiable Service of such suspension or revocation.

2.14.2.6 Within 10 Days after the failure of a Guarantor or indemnitor to meet the requirements of the financial test, such Guarantor or indemnitor shall notify the Owner or Operator and the Department by Verifiable Service of such failure.

2.14.2.7 Within 10 Days of receiving notification per Part F, subsections 2.14.2.2, 2.14.2.3 or 2.14.2.4 of these Regulations, the Owner shall notify the Department by Verifiable Service of the notice received per Part F, subsections 2.14.2.2, 2.14.2.3 or 2.14.2.4 of these Regulations.

2.14.2.8 An Owner or Operator who obtains financial assurance by a mechanism other than the financial test of self-insurance will be deemed to be without the required financial assurance in the event of bankruptcy or incapacity of its Provider of Financial Assurance, or a suspension or revocation of the authority of the Provider of Financial Assurance to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, or letter of credit.

2.14.2.9 Except in the case of financial test of self insurance, the Owner or Operator shall obtain alternate financial assurance within 30 Days after receiving notice of a bankruptcy or incapacity of its Provider of Financial Assurance per Part F, subsection 2.14.2 of these Regulations. If the Owner or Operator does not obtain alternate coverage within 30 Days after such notification, the Owner or Operator shall notify the Department within 10 Days.

2.14.2.10 An Owner or Operator who has a potential or existing claim filed with a Guarantor, indemnitor or other Provider of Financial Assurance who has filed a voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code shall in a timely manner file a Proof of Claim and any necessary supporting documentation with the Court of appropriate jurisdiction and provide a copy of the Proof of Claim to the Department.

2.14.2.11 Within 30 Days after receipt of notification that a State fund or other State assurance has become incapable of paying for assured Corrective Action or third-party compensation costs, the Owner or Operator must obtain alternate financial assurance.

2.15 Drawing on Financial Assurance Mechanisms

2.15.1 Except as specified in Part F, subsection 2.15.4 of these Regulations, the Department shall require the Guarantor, surety, or institution issuing a letter of credit, to place the amount of funds stipulated by the Department, up to the limit of funds provided by the financial assurance mechanism, into the standby trust if:

2.15.1.1 The Owner or Operator fails to establish alternate financial assurance within 60 Days after receiving notice of cancellation of the guarantee, surety bond, letter of credit, or, as applicable, other financial assurance mechanisms and the Department determines or suspects that a Release from an UST System covered by the mechanism has occurred and so notifies the Owner or Operator or the Owner or Operator has notified the Department pursuant to requirements established under Part E of these Regulations of a Release from an UST System covered by the mechanism; or

2.15.1.2 The conditions of Part F, subsections 2.15.2.1 or 2.15.2.2 of these Regulations are satisfied.

2.15.2 The Department may draw on a standby trust fund when:

2.15.2.1 The Department makes a final determination that a Release has occurred and immediate or long term Corrective Action for the Release is needed, but the Owner or Operator, after appropriate notice and opportunity to comply, has not conducted Corrective Action as required under Part E of these Regulations; or

2.15.2.2 The Department has received either:

2.15.2.2.1 Certification from the Owner or Operator and the third party liability claimant(s) and from attorneys representing the Owner or Operator and the third party liability claimant(s) that a third party liability claim should be paid. The certification shall be worded as specified by the Department, as found in Part F, subsection 3.9, Form I of these Regulations except that instructions in brackets are to be replaced with the relevant information and the brackets deleted; or

2.15.2.2.2 A valid final court order establishing a judgment against the Owner or Operator for Bodily Injury or Property Damage caused by an Accidental Release from an UST System covered by financial assurance under Part F and the Department determines that the Owner or Operator has not satisfied the judgment.

2.15.3 If the Department determines that the amount of Corrective Action costs and third party liability claims eligible for payment under Part F, subsection 2.15.2 of these Regulations may exceed the balance of the standby trust fund and the obligation of the Provider of Financial Assurance, the first priority for payment shall be Corrective Action costs necessary to protect human health and the environment. The Department shall pay third party liability claims in the order in which the Department receives certifications under Part F, subsection 2.15.2 of these Regulations.

2.15.4 A governmental entity acting as Guarantor under Part F, subsection 2.10, the Local Government guarantee without standby trust, shall make payments as directed by the Department under the circumstances described in Part F, subsections 2.15.1, 2.15.2, or 2.15.3 of these Regulations.

2.16 Release From the Requirements of Financial Responsibility

2.16.1 An Owner or Operator is no longer required to maintain financial responsibility under Part F for an UST System after the UST System has been Removed or Closed In Place in accordance with the requirements of these Regulations and the Requirements of Part E of these Regulations have been completed.

2.17 Replenishments of Required Financial Responsibility

2.17.1 If at any time after a standby trust is funded upon the instruction of the Department with funds drawn from a guarantee, Local Government guarantee with standby trust, letter of credit, or surety bond, and the amount in the standby trust is reduced below the full amount of coverage required, the Owner or Operator shall by the anniversary date of the financial mechanism from which the funds were drawn:

2.17.1.1 Replenish the value of financial assurance to equal the full amount of coverage required, or

2.17.1.2 Acquire another financial assurance mechanism for the amount by which funds in the standby trust have been reduced.

2.17.2 For purposes of this Section, the full amount of coverage required is the amount of financial responsibility required by Part F, subsection 1.3 of these Regulations. If a combination of mechanisms was used to provide the assurance funds which were drawn upon, replenishment shall occur by the earliest anniversary date among the mechanisms.

7 Del. Admin. Code § 1351-F-2.0

13 DE Reg. 1562 (06/01/10)
23 DE Reg. 581 (1/1/2020)
27 DE Reg. 533 (1/1/2024) (Final)