Section 132-8-014 - Corporate Financial Test An owner or operator that satisfies the requirements of this section may demonstrate financial assurance up to the amount specified in this section:
014.01 Financial Component 014.01A The owner or operator must satisfy one of the following three conditions: 014.01A1 A current rating for its senior unsubordinated debt of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A or Baa, as issued by Moody's; or014.01A2 A ratio of less than 1.5 comparing total liabilities to net worth; or014.01A3 A ratio of greater that 0.10 comparing the sum of net income plus depreciation, depletion and amortization, minus $10 million, to total liabilities.014.01B The tangible net worth of the owner or operator must be greater than: 014.01B1 The sum of the current closure, post-closure care, remedial action cost estimates and any other environmental obligations, including guarantees, covered by a financial test plus $10 million except as provided in Section 014.01B 2.014.01B2 $10 million in net worth plus the amount of any guarantees that have not been recognized as liabilities on the financial statements provided all of the current closure, post-closure care, and remedial action costs and any other environmental obligations covered by a financial test are recognized as liabilities on the owner's or operator's audited financial statements, and subject to the approval of the Department.014.01C The owner or operator must have assets located in the United States amounting to at least the sum of current closure, post-closure care, remedial action cost estimates and any other environmental obligations covered by a financial test as described in Section 014.03.014.02 Recordkeeping and Reporting Requirements014.02A The owner or operator must provide the Department the following items and place a copy into the facility's operating record: 014.02A1 A letter signed by the owner's or operator's chief financial officer that: 014.02A1(a) Lists all current cost estimates covered by a financial test, including, but not limited to, cost estimates required for municipal solid waste management facilities under this chapter, cost estimates required for underground injection control facilities, if applicable, cost estimates required for petroleum underground storage tank facilities, if applicable, cost estimated required for PCB storage facilities, if applicable, and cost estimates required for hazardous waste treatment, storage and disposal facilities, if applicable; and014.02A1(b) Provides evidence demonstrating that the firm meets the conditions of either Section 014.01A1 or 014.01A2 or 014.01A3 and Section 014.01B and 014.01C.014.02A2 A copy of the independent certified public accountant's unqualified opinion of the owner's or operator's financial statements for the latest completed fiscal year. To be eligible to use the financial test, the owner's or operator's financial statements must receive an unqualified opinion from the independent certified public accountant. An adverse opinion, disclaimer of opinion, or other qualified opinion will be cause for disallowance, with the potential exception for qualified opinions provided in the next sentence. The Department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the Department deems that the matters which form the basis for the qualification are insufficient to warrant disallowance of the test. If the Department does not allow use of the test, the owner or operator must provide alternate financial assurance that meets the requirement of this chapter.014.02A3 If the chief financial officer's letter providing evidence of financial assurance includes financial data showing that owner or operator satisfies Sections 014.01A2 and 014.01A3 that are different from data in the audited financial statements referred to in Section 014.02A2 or any other audited financial statement or data filed with the SEC, then a special report from the owner's or operator's independent certified public accountant to the owner or operator is required. The special report shall be based upon an agreed upon procedures engagement in accordance with professional auditing standards and shall describe the procedures performed in comparing the data in the chief financial officer's letter derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements, the findings of that comparison, and the reasons for any differences.014.02A4 If the chief financial officer's letter provides a demonstration that the firm has assured for environmental obligations as provided in Section 014.01B 2, then the letter shall include a report from the independent certified public accountant that verifies that all of the environmental obligations covered by a financial test have been recognized as liabilities on the audited financial statements, how these obligations have been measured and reported, and that the tangible net worth of the firm is at least $10 million plus the amount of any guarantees provided.014.02B An owner or operator must provide the Department the items specified in Section 014.02A and place a copy into the operating record. before the initial receipt of waste in the case of closure, and post-closure care, or no later than 120 days after the remedial action workplan has been approved by the Department.014.02C After the initial placement of items specified in Section 014.02A in the operating record, the owner or operator must annually update the information, provide the Department the updated information, and place a copy into the operating record within 90 days following the close of the owner or operator's fiscal year. The Department may provide up to an additional 45 days for an owner or operator who can demonstrate that 90 days is insufficient time to acquire audited financial statements. The updated information must consist of all items specified in Section 014.02A.014.02D The owner or operator is no longer required to submit the items specified in Section 014.02 or comply with the requirements of this section when: 014.02D1 The owner or operator substitutes alternate financial assurance as specified in this chapter that is not subject to these recordkeeping and reporting requirements: or014.02D2 The owner or operator is released from the requirements of this chapter in accordance with Sections 004, 006 and 008.014.02E If the owner or operator no longer meets the requirements of Section 014.01, the owner or operator must, within 120 days following the close of the owner or operator's fiscal year, notify the Department that the owner or operator no longer meets the criteria of the financial test, obtain alternative financial assurance that meets the requirements of this chapter, provide the Department the required submissions for that assurance, and place a copy into the operating record.014.02F The Department may, based on a reasonable belief that the owner or operator may no longer meet the requirements of Section 014.01, require at any time the owner or operator to provide reports of its financial condition in addition to or including current financial test documentation as specified in Section 014.02. If the Department finds that the owner or operator no longer meets the requirements of Section 014.01, the owner or operator must provide alternate financial assurance that meets the requirements of this chapter.014.03 Calculations of Costs to be Assured When calculating the current cost estimates for closure, post-closure care, remedial action, or the sum of the combination of such costs to be covered, and any other environmental obligations assured by a financial test referred to in this section, the owner or operator must include cost estimates required for municipal solid waste management facilities under this part, as well as cost estimates required for the following environmental obligations, if it assures them through a financial test: obligations associated with underground injection control facilities, petroleum underground storage tank facilities, PCB storage facilities, and hazardous waste treatment, storage and disposal facilities.
132 Neb. Admin. Code, ch. 8, § 014
Amended effective 5/17/2016.