132 Neb. Admin. Code, ch. 8, § 013 - Insurance
013.01 An owner or
operator may demonstrate financial assurance for closure and post-closure care
by obtaining insurance which conforms to the requirements of this section. The
insurance must be effective before the initial receipt of waste. At a minimum,
the insurer must be licensed to transact the business of insurance, or eligible
to provide insurance as an excess or surplus lines insurer, in one or more
States. The owner or operator must provide the Department with an originally
signed duplicate of the insurance policy that has been placed in the operating
record.
013.01A An owner or operator using
insurance as a financial assurance mechanism must disclose whether the insurer
is a subsidiary or has a corporate, legal or financial affiliation with the
owner or operator.
013.01A1 An owner or
operator using insurance issued by a subsidiary or affiliate must provide a
detailed description of the relationship between the owner or operator and
insurer, and must demonstrate the owner or operator can satisfy the financial
test criteria in Section 014.01.
013.01B An insurer issuing an insurance
policy for a parent company or affiliate, or for a group of companies in the
same industry, must meet the following qualifications:
013.01B1 The most recent A.M. Best rating
must be at least A- (minus);
013.01B2 The insurer must be domiciled in the
United States;
013.01B3 The most
recent Report on Examination from the State Insurance Department from the
insurer's State of Domicile must be satisfactory;
013.01B4 The insurer must have capital and
surplus of at least $100,000,000; and
013.01B5 The insurer must receive an
unqualified opinion of their annual financial statements from an independent
certified public accountant, with the potential exception for qualified
opinions as follows. The Department may evaluate qualified opinions on a
case-by-case basis and allow use of the insurer in cases where the Department
determines the matters which form the basis for the qualification are
insufficient to warrant disqualification of the insurer.
013.02 The closure or post-closure
care insurance policy must guarantee that funds will be available to close the
solid waste management facility whenever final closure occurs or to provide
post-closure care for the solid waste management facility whenever the
post-closure care period begins, which ever is applicable. If the owner or
operator fails to properly implement the closure or post-closure plan, the
insurer will be responsible for the paying out of funds to the owner or
operator or other person authorized to conduct closure or post-closure care, up
to an amount equal to the face amount of the policy.
013.03 The insurance policy must be issued
for a face amount at least equal to the current cost estimate for closure or
post-closure care, whichever is applicable, except as provided in Section
019. The term face amount means the total amount the
insurer is obligated to pay under the policy. Actual payments by the insurer
will not change the face amount, although the insurer's future liability will
be lowered by the amount of the payments.
013.04 An owner or operator, or any other
person authorized to conduct closure or post-closure care, may receive
reimbursement for closure or post-closure expenditures, whichever is
applicable. Requests for reimbursements will be granted by the insurer only if
the remaining value of the policy is sufficient to cover the remaining costs of
closure or post-closure care, and if justification and documentation of the
cost is placed in the operating record. The owner or operator must provide the
Department the documentation of justification for reimbursement and place a
copy of the documentation in the operating record.
013.05 Each policy must contain a provision
allowing assignment of the policy to a successor owner or operator. Such
assignment may be conditional upon consent of the insurer, provided that such
consent is not unreasonably refused.
013.06 Each policy must contain a provision
that a Certificate of Insurance verifying coverage will be provided to the
Department on an annual basis.
013.07 The insurance policy must provide that
the insurer may not cancel, terminate or fail to renew the policy except for
the failure to pay the premium. The automatic renewal of the policy must, at a
minimum, provide the insured with the option of renewal at the face amount of
the expiring policy. If there is a failure to pay the premium, the insurer may
cancel the policy by sending notice of cancellation by certified mail to the
owner and operator and to the Department 120 days in advance of cancellation.
If the insurer cancels the policy, the owner or operator must obtain alternate
financial assurance as specified in this chapter.
013.07A Cancellation, termination or failure
to renew may not occur and the policy will remain in full force and effect in
the event that on or before the date of expiration:
013.07A1 The NDEQ Director deems the facility
abandoned; or
013.07A2 The permit
is terminated or revoked or a new permit is denied by the NDEQ Director;
or
013.07A3 Closure is ordered by
the NDEQ Director or U.S. district court or other court of competent
jurisdiction; or
013.07A4 The owner
or operator is named as debtor in a voluntary or involuntary proceeding under
Title 11 (Bankruptcy), US Code; or
013.07A5 The owner or operator pays the
premium due.
013.08 For insurance policies providing
coverage for the post-closure care, commencing on the date that liability to
make payments pursuant to the policy accrues, the insurer will thereafter
annually increase the face amount of the policy. Such increase must be
equivalent to the face amount of the policy, less any payments made, multiplied
by an amount equivalent to eighty-five percent (85%) of the most recent
investment rate or the equivalent coupon-issue yield announced by the U.S.
Treasury for 26-week Treasury securities.
013.09 The owner or operator may cancel the
insurance policy only if alternate financial assurance is substituted as
specified in this chapter, or if the owner or operator is no longer required to
demonstrate financial responsibility, in accordance with the requirements of
Sections 004 or
006.
Notes
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