020-7 Wyo. Code R. §§ 7-7 - Self-bonds

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.

Notes

020-7 Wyo. Code R. §§ 7-7

Amended, Eff. 9/27/2021.