Acceptable financial instruments obtained prior to January 11, 2017, will continue to be acceptable through the stated period of coverage.
Documentation that has been determined to be acceptable, but on a second look is found to be deficient, needs to be replaced with new financial assurance instruments using the appropriate form part(s).
A common error in previously accepted instruments is the use of "and/or" when "and" is required (such as "sudden and non-sudden accidental releases"). The “or” option identified in the federal code is applicable only when coverage of each kind is provided by separate financial instruments. (Even then the word "or" will not occur in the two documents.)
Instruments that are "evergreen" in nature (bonds, letters of credit, trust funds, standby trust funds (SBTFs), guarantees) that were worded correctly at the time of issuance will continue to be acceptable.
When the list of facilities changes on an acceptable instrument, the existing instrument can be amended with documentation from the provider company (surety, bank, trustee, guarantor) acknowledging and accepting the changed list of facilities.
New instruments (e.g., renewed insurance policies and Self Insurance) must use the DEP forms, not just "exact wording".
Insurance certificates and endorsements using Form 62-761.900(3) Parts C and D:
Electronic signatures (for both insurer rep and witness) that follow industry best practice standards (and requirements of ESIGN Act and UETA) are acceptable.
The form 'requires' an Insurer's embossed seal to substantiate the authority of the signatory to amend the policy pursuant to Paragraph 1. The following alternatives are acceptable substitutes:
electronic seal of Insurer
signature is of Insurer's President (no seal required)
signature matches signature on policy (no seal required)
accompanying letter from President verifies signatory has authority to amend policies (no seal required)
We have worked out issues dealing with the new embossed seal requirement (see above).
The new Certification of Financial Responsibility form requires additional information [in line with 40CFR280.111(b)(11) requirements], so a Form 62-761.900(3) Part P needs to be completed by almost all owners and operators.
Instruments that require annual documentation need a new certification at the time of issuance/renewal.
Instruments that are "evergreen" need a new certification this year if the existing certificate does not identify supporting financial instruments (such as SBTFs).
Only when there is no additional form part required will the existing certification continue to be acceptable beyond January 2018 (e.g., insurance with a multiple year period of coverage).
A new Part P should be completed whenever there is any change to any financial instrument (facility/tank list, coverage period, etc.).
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