Section 25-11-110 - Financial assurance warranties - definitions(1) As a part of any license, certificate, or authorization issued under this article and pursuant to regulations promulgated by the state board of health, the department may require financial assurance warranties.(2) As used in this section, unless the context otherwise requires: (a) "Decommissioning warranty" means a financial assurance arrangement provided by a person licensed, certified, or authorized pursuant to this article that is required to ensure decommissioning and decontamination of a facility and proper disposal of radioactive materials to meet the requirements of this part 1, the regulations promulgated pursuant thereto, or the license.(b) "Financial assurance warranty" means a decommissioning warranty or a long-term care warranty.(c) "Indirect costs" means those costs established annually in accordance with federal circular A-87, or any applicable successor document.(d) "Long-term care warranty" means a financial assurance arrangement provided by a person licensed, certified, or authorized pursuant to this article that is required to cover the costs incurred by the department in conducting surveillance of a disposal site in perpetuity subsequent to the termination of the radioactive materials license for that site.(3)(a) Financial assurance warranties may be provided by the licensee or by a third party or combination of persons.(b) Any financial assurance warranty required pursuant to this section shall be in a form prescribed by the state board of health by regulation.(c) The department may refuse to accept any financial assurance warranty if: (I) The form, content, or terms of the warranty are other than as prescribed by the state board of health by regulation;(II) The financial institution providing the financial assurance instrument is an off-shore, nondomestic institution or does not have a registered agent in the state of Colorado;(III) The value of the financial assurance warranty offered is dependent upon the success, profitability, or continued operation of the licensed business or operation; or(IV) The department determines that the financial assurance warranty cannot be converted to cash within thirty days after forfeiture.(4)(a) The department shall determine the amount of financial assurance warranties required, taking into account the nature, extent, and duration of the licensed activities and the magnitude, type, and estimated cost for proper disposal of radioactive materials, decontamination, and decommissioning or long-term care.(b) The amount of a decommissioning warranty shall be sufficient to enable the department to dispose of radioactive materials and complete decontamination and decommissioning of affected buildings, fixtures, equipment, personal property, and lands if necessary.(c) The amount of the decommissioning warranty shall be based upon cost estimates of the total costs that would be incurred if an independent contractor were hired to perform the decommissioning, decontamination, and disposal work, and may include reasonable administrative costs, including indirect costs, incurred by the department in conducting or overseeing disposal, decontamination, and decommissioning and to cover the department's reasonable attorney costs that may be incurred in successfully revoking, foreclosing, or realizing the decommissioning warranty as authorized in section 25-11-111(4).(d) The amount of a long-term care warranty must be enough that, with an assumed one percent annual real interest rate, the annual interest earnings will be sufficient to cover the annual costs of site surveillance by the department, including reasonable administrative costs incurred by the department, in perpetuity, subsequent to the termination of the radioactive materials license for that site.(e) If the state of Colorado is the long-term caretaker for the disposal facility pursuant to section 25-11-103(7)(h), long-term care moneys shall be transferred, pursuant to section 25-11-113(3), to the long-term care fund, created in section 25-11-113, prior to license termination and shall be used by the department to perform site surveillance and to cover the department's administrative and reasonable attorney costs.(f) The department is authorized to transfer a long-term care warranty to the United States department of energy or another federal agency if that agency will be the long-term caretaker for the disposal facility.(5)(a) The department shall take reasonable measures to assure the continued adequacy of any financial assurance warranty and may annually or for good cause increase or decrease the amount of required financial assurance warranties or require proof of the value of existing warranties.(b) The licensee shall submit an annual report to the department demonstrating proof of the value of existing warranties. The annual report shall describe any changes in operations, estimated costs, or any other circumstances that may affect the amount of the required financial assurance warranties, including any increased or decreased costs attributable to inflation.(c) Public notice of the submittal of the licensee's annual report shall be posted on the department's website and published by the operator in the local paper of general circulation. Any person may submit written comments to the department concerning the adequacy of any financial assurance warranties. The act of submitting such comments does not provide a right to administrative appeal concerning the financial assurance warranties.(d) The licensee shall have sixty days after the date of written notification by the department of a required adjustment to establish a warranty fulfilling all new requirements unless granted an extension by the department. If the licensee disputes the amount of the required financial assurance warranties, the licensee may request a hearing to be conducted in accordance with section 24-4-105, C.R.S.(e) If the licensee requests a hearing, no new ore or other radioactive material may be brought on site for processing or disposal and no new radioactive material may be processed until the licensee's dispute over the financial assurance warranty is resolved, unless the licensee posts a bond in a form approved by the department equal to the amount in dispute.(6)(a) Financial assurance warranties shall be maintained in good standing until the department has authorized in writing the discontinuance of such warranties.(b)(I) If a financial warranty is provided by a corporate surety, the department shall require the surety to be A.M. Best rated "A-V" or better and listed on the United States treasury's federal register of companies holding certificates of authority as acceptable sureties on federal bonds; except that, the corporate surety shall notify the department and the licensee, in writing, as soon as practicable in the event its A.M. Best, or equivalent, rating deteriorates below an "A-V" rating or such corporate surety is removed from the department of the treasury's list of companies holding certificates of authority as acceptable sureties on federal bonds.(II) The board may promulgate rules and regulations concerning other circumstances that may constitute an impairment of the warranties referenced in this article that would require reasonable notice to the department by the warrantor.(III) A financial warrantor shall notify the department not less than ninety days prior to any cancellation, termination, or revocation of the warranty, unless the department has authorized in writing the discontinuance of such warranties.Amended by 2015 Ch. 79,§ 6, eff. 8/5/2015.L. 97: Entire section added, p. 1633, § 2, effective August 15. L. 2010: (5) amended, (HB 10-1348), ch. 388, p. 1819, §3, effective June 8. L. 2015: (4)(d) and (5)(e) amended, (HB 15-1145), ch. 79, p. 221, § 6, effective August 5.