Mich. Admin. Code R. 299.9711

Current through Vol. 24-10, June 15, 2024

Section R. 299.9711 - Financial capability requirements for transporters

Rule 711.

(1) A transporter shall demonstrate proof of financial capability as required pursuant to the provisions of section 30(2)(c) of part 111 of the act. To meet this requirement, the transporter shall demonstrate proof of financial responsibility for bodily injury and property damage to third parties caused by accidental occurrences arising from the hazardous waste transportation activities of the transporter. The transporter shall have and maintain liability coverage for accidental occurrences in an amount not less than $1,000,000.00 per occurrence, exclusive of legal defense costs.

(2) A transporter who operates a transfer facility or group of transfer facilities shall, in addition to the requirements of subrule (1) of this rule, demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden and accidental occurrences arising from the operations of the facility or group of facilities. The transporter shall have and maintain liability coverage for sudden and accidental occurrences in an amount not less than $500,000.00 per occurrence, exclusive of legal defense costs. The requirement for liability coverage is in addition to any other insurance requirements of sections 3101 and 3102 of act 218. The transporter shall comply with the liability coverage requirements of this subrule by obtaining an insurance policy in accordance with the provisions of subrule (3) of this rule or by passing the financial test specified in the provisions of subrule (4) of this rule.

(3) Each insurance policy that is obtained by a transporter to fulfill the requirements of subrule (2) of this rule shall be in compliance with all of the following provisions:

(a) The policy shall include a provision that the insurer notify the director 30 days before either of the following:

(i) Cancellation or termination of the insurance by either party for any reason.

(ii) A material change to the policy for any reason.

(b) The policy shall be issued by an insurer which, at a minimum, is licensed to transact the business of insurance, or which is eligible to provide insurance as an excess or surplus line insurer, in the state of Michigan.

(c) The deductible written into the policy shall not be more than 5% of the per occurrence limit of liability of the policy. If more than 1 policy is used to provide the coverage required by this rule, the total of all deductibles shall not be more than 5% of the total of the per occurrence limits of the policies used.

(d) The policy shall be amended by attaching an endorsement on a form provided by the director.

(4) A transporter may satisfy the liability coverage requirements of subrule (2) of this rule by demonstrating that he or she passes a financial test as specified in this rule. To pass the test, the owner or operator shall meet the criteria of either subdivision (a) or (b) of this subrule as follows:

(a) A transporter shall comply with all of the following provisions:

(i) Have a net working capital and a tangible net worth which, for each, is not less than 6 times the amount of liability coverage to be demonstrated by the test.

(ii) Have a tangible net worth of not less than $10,000,000.00.

(iii) Have assets in the United States that amount to not less than 90% of his or her total assets or not less than 6 times the amount of liability coverage to be demonstrated by the test.

(b) A transporter shall comply with all of the following provisions:

(i) Have a current rating for his or her most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poors corporation or Aaa, Aa, A, or Baa as issued by Moodys investors service, inc.

(ii) Have tangible net worth of not less than $10,000,000.00.

(iii) Have a tangible net worth that is not less than 6 times the amount of liability coverage to be demonstrated by the test.

(iv) Have assets in the United States that amount to not less than 90% of his or her total assets or not less than 6 times the amount of liability coverage to be demonstrated by the test.

(c) The phrase "amount of liability coverage" as used in this subrule refers to the annual aggregate amounts for which coverage is required pursuant to the provisions of subrule (2) of this rule.

(5) A transporter shall demonstrate the existence of the required liability coverage by submitting 1 of the following to the director:

(a) A signed copy of the "endorsement for motor carrier policies of insurance for public liability under sections 29 and 30 of the motor carrier act of 1980" (OMB no. 2125-0074, form MCS-90) and a signed duplicate original of an endorsement on a form provided by the director which identifies the insurance policy number and expiration date, all vehicles covered under the policy, and modifies the policy to comply with subrule (1) of this rule. The transporter shall submit the amendatory endorsement on a form provided by the director within 90 days of the effective date of this amendatory rule or upon issuance of a transporter business license, whichever comes first. If requested by the director, the transporter shall also submit signed duplicate originals of all insurance policies needed to fulfill the requirements of subrule (1) of this rule.

(b) A "motor carrier public liability surety bond under sections 29 and 30 of the motor carrier act of 1980" (OMB no. 2125-0075, form MCS-82) issued by a surety that, at a minimum, is among those listed as acceptable sureties on federal bonds in circular 570 of the United States department of the treasury.

(c) A written decision, order, or authorization from the interstate commerce commission which authorizes the transporter to self-insure pursuant to the provisions of 49 C.F.R. §1043.5, provided the transporter maintains a satisfactory safety rating as determined by the bureau of motor carrier safety pursuant to the provisions of 49 C.F.R. part 385.

(6) A transporter who operates a transfer facility shall demonstrate the existence of the required liability coverage pursuant to the provisions of subrule (2) of this rule by submitting either of the following with his or her business application:

(a) All information that is necessary to meet the financial test, as follows:

(i) A letter which is signed by the transporters chief financial officer and which is worded as specified by the director.

(ii) A copy of the independent certified public accountants report upon examining the transporters financial statements for the latest completed fiscal year.

(iii) A special report from the transporters independent certified public accountant to the transporter which states that the transporters independent certified public accountant has compared the data that the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest completed fiscal year with the amounts in such financial statements, and that, in connection with that procedure, no matters came to the attention of the transporters independent certified public accountant which caused the accountant to believe that the specified data should be adjusted.

(b) An endorsement provided by the director which shows that the coverage required in subrules (2) and (3) of this rule has been obtained by the transporter. The transporter shall submit a signed duplicate original of each insurance endorsement. If requested by the director, the transporter shall provide signed duplicate originals of all insurance policies that are needed to fulfill the requirements of subrule (2) of this rule.

(7) If underlying policies that are required pursuant to the provisions of subrule (1) or (2) of this rule do not provide sufficient limits of liability, the policy shall be amended by attaching an excess liability insurance endorsement on a form provided by the director.

(8) If a transporter is using the financial test to demonstrate financial responsibility for liability coverage required pursuant to the provisions of subrule (2) of this rule and no longer meets the requirements of subrule (4) of this rule, then he or she shall send notice to the director of the intent to obtain an insurance policy as specified in this rule. The notice shall be sent by certified mail within 90 days after the end of the fiscal year for which year-end financial data show that the transporter no longer meets the requirements of subrule (4) of this rule. The transporter shall obtain liability insurance within 120 days after the end of such fiscal year.

(9) The director may disallow the use of a financial test to meet the requirements of subrule (2) of this rule on the basis of qualifications in the opinion expressed by the independent certified public accountant in his or her report upon examining the transporters financial statements. An adverse opinion or disclaimer of opinion is cause for the disallowance of the use of a financial test to meet the requirements of subrule (2) of this rule. The director shall evaluate other qualifications on an individual basis. The transporter shall obtain an insurance policy as specified in this rule within 30 days after notification of the disallowance.

Mich. Admin. Code R. 299.9711

1985 AACS; 1988 AACS; 1989 AACS; 1994 AACS; 1998-2000 AACS