Storage Tank Financial Responsibility Transition to New Forms

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Transition to New Form Parts
(Form Effective Date October 2019 - with revision made on Feb. 7, 2020)

• Acceptable financial instruments obtained (signed) prior to Oct. 13, 2019, 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).
  • Concerning insurance policies: the Certificate of Insurance states, “The Insurer further warrants that such policy conforms in all respects with the requirements of Rule(s) 62-761.420 and/or 62-762.421, Florida Administrative Code …. It is agreed that any provision of the policy inconsistent with such regulations is hereby amended to eliminate such inconsistency.” Due to this and the requirement of the Certificate-signer to have the authority to amend the policy, we believe the policy is effectively amended effective on the date the Certificate is signed, but we also require seeing an amended policy when deficiencies are found.
  • Instruments that are "evergreen" in nature (bonds, letters of credit, trust funds, standby trust funds (SBTFs), guarantees by a state) that were worded correctly at the time of issuance (and before January 2017) will continue to be acceptable.
  • When the list of facilities changes on an acceptable instrument, the existing instrument may be amended with documentation from the provider company (surety, bank, trustee, guarantor) acknowledging and accepting the changed list of facilities.  As many issuing institutions need or choose to attach a Facility/Tank Schedule to the financial assurance instrument or amendment, we provide a fillable example form for their use.
• New instruments (e.g., renewed insurance policies and Self Insurance) must use the current DEP form parts (with form effective date October 2019) when signed after Oct. 13, 2019.  If signed after March 1, 2020, instruments should use the current DEP form parts that replace the term "releases" with "discharges" (in, for example, a coverage drop-down box).
• Insurance certificates and endorsements using Form 62-761.900(3) Parts C and D:
  • If an Insurance Company recreates the DEP form on their equipment, make sure it looks exactly like the DEP form!  Same header, same footer, same wording at the top of page 2, same length blanks/underscores, same line return words, etc. No exceptions!
  • Electronic signatures (for both insurer rep and witness) that follow requirements of ESIGN Act and UETA (and industry best practice standards) are acceptable.
  • The Date of Witness or Notary must be the same or after the issuance of the policy or a few days before its issuance.
  • The new form has a signature block check list for the Insurer to identify how the signatory's authority to amend the policy pursuant to Paragraph 1. is substantiated.
  • Insurance Check List (PDF) (inspired by ASTSWMO check list) is accessible at the end of the two insurance forms' web pages (Certificate and Endorsement) under 'Form Instructions'
• The new Certification of Financial Responsibility (Part P - C.F.R.) form no longer requires a list of facilities [in line with 40 CFR 280.111(b)(11) requirements] as the accompanying instruments have a list of covered facilities. 
  • A new C.F.R. should be completed whenever there is any change to any financial instrument (facility/tank list, coverage period, coverage amount, etc.). 

Main Change to Rules 62-761.420 and 62-762.421, F.A.C. (after October 2019 and April 2021 revisions)

• Government agencies that use either a financial test (Parts A or J) or a fund (Part O) have 180 days, instead of 120 days, after the end of the fiscal year to prepare financial assurance documentation. (Period of Coverage calculator is available via relevant form part webpages.)
• State and federal government owned USTs and ASTs have the same adopted federal code exemptions [40 CFR 280.90(c)].
  • Universities in Florida’s State University System are included.

Links:

• Storage Tank Financial Responsibility
• Forms (Mechanisms)
• General Guidance (FAQs)
• Rules and Related Laws
• Storage Tank Program Contact List