Wyoming Administrative Code
Agency 020 - Environmental Quality, Dept. of
Sub-Agency 0009 - Solid Waste Management
Chapter 7 - FINANCIAL ASSURANCE REQUIREMENTS
Section 7-7 - Self-bonds
Universal Citation: WY Code of Rules 7-7
Current through September 21, 2024
Self-bonding shall comply with the following requirements:
(a) An initial application to self-bond shall contain:
(i) Identification of
operator:
(A) For corporations, name,
address, telephone number, state of incorporation, principal place of business
and name, title and authority of person signing application, a corporate
resolution authorizing the application, and statement of authority to do
business in the State of Wyoming, or
(B) For all other forms of business
enterprises, name, address and telephone number and statement of how the
enterprise is organized, law of the State under which it is formed, place of
business, and relationship and authority of the person signing the
application.
(ii) Amount
of self-bond proposed. The proposed self-bond maximum amount shall not exceed
seventy-five percent of the required bond amount.
(iii) Type of operation and anticipated dates
performance is to be commenced and completed.
(iv) Brief chronological history of business
operations that illustrates a continuous operation for five years immediately
preceding the time of application. The Director may allow a joint venture or
syndicate with less than five years of continuous operation to qualify under
this requirement, if each member of the joint venture or syndicate has been in
continuous operation for at least five years immediately preceding the time of
application.
(v) Information in
sufficient detail to show good-faith performance of past operation, closure,
post-closure, and corrective action obligations. The compliance information in
the permit or annual reports may be referenced to satisfy part of this
requirement.
(vi) Financial
information in sufficient detail to show that the operator and ultimate parent
guarantor meets one of the following criteria:
(A) Have a rating for all bond issuance
actions and long term credit rating within the current year of "Aa3" or higher
as issued by either Moody's Investor Service, "AA-" or higher as issued by
Standard and Poor's Corporation or "AA-" or higher as issued by Fitch Ratings.
The operator is eligible for a maximum of seventy-five percent of the approved
cost estimate. The self-bond must accompany another acceptable financial
assurance instrument for the remaining twenty-five percent of the approved cost
estimate;
(B) Have a rating for all
bond issuance actions and long-term credit rating within the current year of
"A2" or higher as issued by Moody's Investor Service, "A" or higher as issued
by Standard and Poor's Corporation or "A" or higher as issued by Fitch Ratings.
The operator is eligible for a maximum of seventy percent of the approved cost
estimate. The self-bond must accompany another acceptable financial assurance
instrument for the remaining thirty percent of the approved cost estimate;
or
(C) Have a rating for all bond
issuance actions and long-term credit rating within the current year of
"Baa2/A-" or higher as issued by Moody's Investor Service, "BBB/A-" or higher
as issued by Standard and Poor's Corporation or "BBB/A-" or higher as issued by
Fitch Ratings. The operator is eligible for a maximum of fifty percent of the
approved cost estimate. The self-bond must accompany another acceptable
financial assurance instrument for the remaining fifty percent of the approved
cost estimate.
(D) In the event of
a split rating, the Director has the discretion to determine which rating will
be accepted and applied to (A), (B), or (C) of this subsection.
(vii) A statement listing any
notices issued by the Securities and Exchange Commission or proceedings
initiated by any party alleging a failure to comply with any public disclosure
or reporting requirements under the securities laws of the United States. Such
statement shall include a summary of each such allegation, including the date,
the requirement alleged to be violated, the party making the allegation, and
the disposition or current status thereof.
(viii) A statement identifying by name,
address, and telephone number:
(A) A
registered office which may be but need not be, the same as the operator's
place of business;
(B) A registered
agent, which agent must be either an individual resident in this State, whose
business office is identical with such registered office, or a domestic
corporation authorized to transact business in the State, having a business
office identical with such registered office. The registered agent so appointed
by the operator shall be an agent to such operator upon whom any process,
notice or demand required or permitted by law to be served upon the operator
may be served;
(ix) An
acknowledgement that:
(A) If the operator
fails to appoint or maintain a registered agent in this state, or whenever any
such registered agent cannot be reasonably found at the registered office, then
the Director shall be an agent for such operator upon whom any process, notice
or demand may be served for the purpose of this Chapter. In the event of any
such process, the Director shall immediately cause one copy of such process,
notice or demand to be forwarded, by certified mail, to the operator at his
principle place of business. The Director shall keep a record of all processes,
notices, or demands served upon him or her under this paragraph, and shall
record therein the time of such service and his or her action with reference
thereto.
(B) Should the operator
change the registered office or registered agent, or both, a statement
indicating such change shall be filed immediately with the Solid and Hazardous
Waste Division and the Director.
(C) Nothing herein contained shall limit or
affect the right to serve any process, notice or demand required or permitted
by law to be served upon an operator in any other manner now or hereafter
permitted by law.
(x) The
Director may accept a written guarantee for an operator's self-bond from an
ultimate parent guarantor, if the guarantor satisfies the financial criteria of
this Chapter as if it were the operator. Such a written guarantee may be
accepted by the Administrator and shall be referred to as an "ultimate parent
guarantee." The terms of the ultimate parent guarantee shall provide for the
following:
(A) If the operator fails to
complete closure, post-closure, or corrective action the ultimate parent
guarantor shall do so or the ultimate parent guarantor shall be liable under
the indemnity agreement to provide funds to the State sufficient to complete
the closure, post-closure, or corrective action plans, but not to exceed the
actual costs of closure, post-closure, or corrective action; and
(B) The ultimate parent guarantee shall
remain in force unless the ultimate parent guarantor sends notice of
cancellation by certified mail to the operator and to the Director at least
ninety days in advance of the cancellation date, and the Director accepts the
cancellation. The cancellation shall be accepted by the Director if the
operator obtains a suitable replacement bond before the cancellation date, if
the lands for which the self-bond, or portion thereof, was accepted have not
been disturbed, or if the lands have been released under W.S. §
35-11-504.
(xi) For the Director to accept a regulated
facility operator's self-bond, the total amount of the outstanding and proposed
self-bond of the operator shall not exceed twenty-five percent of the
operator's tangible net worth in the United States. For the Director to accept
a corporate guarantee, the total amount of the ultimate parent guarantor's
present and proposed self-bonds and guaranteed self-bonds shall not exceed
twenty-five percent of the guarantor's tangible net worth in the United
States.
(b) Approval or denial of operator's self-bond application:
(i) The Director, within sixty days of the
operator's submission of all materials necessary to base a decision on the
application shall:
(A) Approve or reject such
application and declare in writing its reasons for such action to the operator
or his registered agent.
(B) If a
rejection is based on inadequate information or failure of the operator to
supply all necessary material, the Director shall allow the operator thirty
days to remedy the deficiencies. Such corrections shall be made to the
satisfaction of the Director. The Director shall have an additional sixty days
to approve or reject the corrected application.
(c) If the Director accepts the operator's self-bond, an indemnity agreement shall be submitted subject to the following requirements:
(i) The indemnity agreement
shall be executed by all persons and parties who are to be bound by it,
including the ultimate parent entity guarantor, and shall bind each jointly and
severally.
(ii) Corporations
applying for a self-bond or ultimate parent corporations guaranteeing an
operator's self-bond shall submit an indemnity agreement signed by two
corporate officers who are authorized to bind their corporations. A copy of
such authorization shall be provided to the Director along with an affidavit
certifying that such an agreement is valid under all applicable Federal and
State laws. In addition, all corporate guarantors shall provide a copy of the
corporate authorization demonstrating that the corporation may guarantee the
self-bond and execute the indemnity agreement.
(iii) If the applicant is a partnership,
joint venture or syndicate, the agreement shall bind each partner or party who
has a beneficial interest directly or indirectly, in the operator.
(iv) The indemnity agreement shall provide
that the persons or parties bound shall pay all litigation costs incurred by
the State in any successful effort to enforce the agreement against the
operator.
(d) Self-Bond Renewal:
(i) Any operator seeking to renew a
self-bond shall provide, along with the annual report:
(A) Amount of bond required, which shall be
determined in accordance with W.S. §
35-11-504 and Section
4 of this Chapter, and the amount proposed
to be covered by a self-bond renewal; and
(B) Financial information in sufficient
detail to show that the operator and ultimate parent guarantor still meets one
of the criteria in Section 7(a)(vi), and the limitation in Section 7(a)(xi).
The operator and ultimate parent guarantor shall submit the full report from
the credit reporting agency or agencies supporting its rating for the current
year. Additional information may be requested by the Director when a split
rating occurs.
(ii) A
self-bond may be renewed so long as the above listed information demonstrates
that all parties remain qualified under Section 7(a) of this Chapter and there
is a minimum five-year life of operation remaining.
(e) Self-Bond Substitution:
(i) The Director may require the operator to
substitute a good and sufficient bond instrument if the Director determines in
writing that the self-bond of the operator fails to provide the protection
consistent with the objectives and purposes of the Act. The Director shall
require full or partial substitution if the financial information submitted
under Section 7(a)(xiv)(A)(II) indicates that the operator or ultimate parent
guarantor no longer qualifies under the self-bonding program. Substitution of
an alternate bond shall be made within thirty days. The operator may also
request substitution. This request is contingent upon the operator meeting all
the requirements of the bond provisions in this Chapter. If these requirements
are met, the Director shall accept substitution.
(ii) If the operator fails within thirty days
to make a substitution for the revoked self-bond with a corporate surety, cash,
governmental securities, or federally insured certificates of deposit, or
irrevocable letters of credit in accordance with the bonding provisions of W.S.
§
35-11-504 and this Chapter, the Director
shall suspend or revoke the facility's permit until such substitution is
made.
(f) Reporting requirements:
(i) If a devaluation in the
credit rating occurs, the operator shall notify the Director within thirty days
of the change and provide a copy of the rating report to the
Director.
(ii) If the operator or
ultimate parent guarantor receives any new notice from the Securities and
Exchange Commission or any party initiates proceedings against the operator or
ultimate parent guarantor alleging a failure to comply with any public
disclosure or reporting requirements under the securities laws of the United
States, the operator shall notify the Director within thirty days and shall
include a summary of the allegations, including the date, the requirement
alleged to be violated, the party making the allegation, and the disposition or
current status thereof.
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