ENVIRONMENTAL FINANCIAL ADVISORY BOARD
A. James Barnes, Cbair

    Terry Agrisa

    Jolle Beluga

    John Boland

   Gauge Botcher

   Donald Carrett

   Hlcbael Carley

   Racket Denting

   Pete Domenid

   KeDy Downanl

   Msoy Fraacoeur

   Vincent Qliardy

  Steve Grossman

 Jennifef ffetv&ndez

    Keita Binds

   Steve nonfood

   Langdon Harsh

    Greg Mason

    CherleRlce

    BeleaSanl

  Andrew Sawyers

    Jim Smith

    GregSwaitz

   Soala Toledo
    Billy Turner

   Justin OOsott

    Joan Wise

   StanMetburg
    Designated
   Federal Official
                                                 MAR  20  2007
Honorable Stephen L. Johnson, Administrator
United States Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460

Re: EFAB Report on the Use of Captive Insurance as Financial Assurance Tool in
Office of Solid Waste and Emergency Response Programs

Dear Administrator Johnson:

      At the request of the Agency, the Environmental Financial Advisory
Board (EFAB) has convened a workgroup to address questions concerning the
financial assurance requirements for Office of Solid Waste and Emergency
Response (OSWER) programs. These requirements address closure, post-closure,
corrective action and other aspects of the Resource Conservation and Recovery
Act (RCRA) Subtitle C, D  and I programs and also are viewed as guidance with
regard to Superfund response action. On January 11,2006, EFAB submitted to
the Agency its initial findings concerning use of the financial test and corporate
guarantees. We were pleased to receive on February 21,2006, a letter from the
Assistant Administrator of OSWER thanking EFAB for its work and highlighting
elements of our analysis that were of particular assistance. We are grateful for
this prompt and substantive response, which we have taken into account in
approaching the use of captive insurance for financial assurance.

      As we noted in our letter of January 11,2006, the financial assurance
requirements and the issues concerning them are complex and multi-faceted.  For
this reason, the Board, working with the Agency and other interested
stakeholders, is addressing financial assurance mechanisms in discrete and
manageable pieces, and focusing sequentially on them. The enclosed report on
captive insurance represents a second step in our efforts.  We recognize that many
of the issues associated with policies issued by captive insurers are also issues
posed by commercial insurance. While we acknowledge that there could be
benefits hi assessing both at the same time, we also  found some unique issues
associated with captive insurance that warranted a separate review.  In fact, we
found some commonalities with our earlier analysis of the financial  test. In
effect, the methods by which a party complies with its financial assurance
requirements fall within a continuum of inherent financial capacity to fulfill
guaranties by unrelated third parties. We expect that commercial insurance will
be the next area of focus. As we complete our review of other aspects of financial
assurance, we will apprise you of our responses to the questions posed by the
Agency along with our findings.
                        Providinn Advice on "How To Pay" for Environmental Protection

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      The Board was charged with addressing three questions regarding captive insurance: (1)
Should there be minimum capitalization requirements for captive or other insurers who provide
policies for financial assurance and, if so, what requirements would best assure funds are
available for protection of the environment, including closure, post-closure, corrective action and
other environmental clean-up?; (2) Should policies written by captives and commercial insurers
be treated as equally acceptable mechanisms?; and (3) Should the language of policies written by
captives differ in any way from those issued by commercial insurers?

      In June 2004, EFAB conducted a workshop in New York City which began to explore the
issues raised by the use of several financial assurance mechanisms, including captive insurance.
On June 27,2006, we convened a second workshop in New York City focused exclusively on
captive insurance in which we heard from governmental and financial community
representatives overseeing and evaluating the captive insurance industry, users of captive
insurance, a representative of the EPA Office of the Inspector General, and State government
representatives familiar with the use of captive insurance for RCRA financial assurance. We
received public comment at the meeting, and subsequently have received additional written
comments from business interests and State solid waste management officials.

      Our work has been informed throughout by the expertise of government officials willing
to share their extensive knowledge of environmental insurance.  In particular, we appreciate the
insights provided by EPA staff in both OSWER and OECA, and State regulators familiar with
the details of both RCRA and Superfund financial assurance requirements and the structure and
operations of the captive insurance industry. The active participation of expert EPA staff and
representatives of five States in extended discussions at the New York City workshop and in
deliberations both before and after the workshop assisted the Board in understanding the nature
of and regulatory structure for captive insurance.

      The Board appreciates EPA's continuing support and participation in the development of
this report and the findings contained herein. If the Agency decides to go forward with the
informational materials recommended by the Board, we would be pleased to work with the
Agency or its designees on that effort.  Meanwhile, we will continue to gather and analyze
information on additional topics involving financial assurance in order to respond to the full
range of questions EPA has posed to the Board.

      We would be pleased to respond to any questions that  you may have with regard to
today's report or any other aspect of our on-going deliberations.

                                 Sincerely,
A. James Barnes                               A. Stanley Meiburg
Chair                                         Designated Federal Official

Enclosure

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cc:     Susan Parker Bodine, Assistant Administrator, Office of Solid Waste and Emergency
       Response
       Grant Nakayama, Assistant Administrator, Office of Enforcement and Compliance
       Assistance

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              Environmental Financial
                      Advisory Board
EFAB
A. James Barnes
Chair

A. Stanley Meiburg
Designated Federal
Official
Members

Hon. Pete Domenici
Terry Agriss
Julie Belaga
John Boland
George Butcher
Donald Correll
Michael Curley
Rachel Deming
Kelly Downard
Mary Francoeur
Hon. Vincent Girardy
Steve Grossman
Jennifer Hernandez
Keith Hinds
Stephen Mahfood
Langdon Marsh
Greg Mason
Cherie Rice
Helen Sahi
Andrew Sawyers
Greg Swartz
James Smith
Sonia Toledo
Jim Tozzi
Billy Turner
Justin Wilson
John Wise
  The Use of Captive Insurance as a
      Financial Assurance Tool in
Office of Solid Waste and Emergency
           Response Programs
  This report has not been reviewed for approval by the U.S. Environmental
   Protection Agency; and hence, the views and opinions expressed in the
   report do not necessarily represent those of the Agency or any other
             agencies in the Federal Government.
                                       March 2007

                                    Printed on Recycled Paper

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  The Use of Captive Insurance as a Financial Assurance Tool
  in Office of Solid Waste and Emergency Response Programs
Background

The Environmental Financial  Advisory Board (EFAB or Board) is examining,  at the
request  of the U.S.  Environmental  Protection Agency (EPA or Agency),  questions
concerning the  financial  assurance  requirements  for  Office  of  Solid  Waste  and
Emergency Response (OSWER) programs.  These requirements address closure, post-
closure, corrective action and other aspects of the Resource Conservation and Recovery
Act (RCRA) Subtitle C, D and I programs and also are viewed as guidance with regard to
Superfund response action.  Financial assurance requirements and the issues concerning
them  are complex and multi-faceted.  For  this reason, the Board, working with the
Agency and other interested stakeholders, is  addressing financial assurance mechanisms
in discrete and manageable pieces,  and focusing  sequentially on  them.   This  report
addresses captive insurance, and focuses primarily on Subtitle C closure, post-closure,
and third party liability requirements.

The Board was  charged  by EPA with  addressing three questions regarding captive
insurance: (1) Should there be minimum capitalization requirements for captive or other
insurers who provide policies for financial assurance and, if so, what requirements  would
best assure funds are available for protection  of the environment, including closure, post-
closure, corrective action and other environmental clean-up?; (2) Should policies written
by captives and commercial insurers be treated as equally acceptable mechanisms?; and
(3)  Should the language of policies  written  by captives differ in any way from those
issued by commercial insurers?

In June 2004, EFAB conducted a workshop in New York City that began to explore the
issues raised by  the use of several financial assurance mechanisms, including captive
insurance.  On June  27,  2006,  we convened  a second workshop  in New  York City
focused exclusively on captive insurance in which we heard from governmental  and
financial community  representatives overseeing and evaluating the captive  insurance
industry, users of captive insurance, a representative of the EPA Office of the Inspector
General, and  three State  government representatives familiar with the  use of captive
insurance for RCRA financial  assurance.  We received public comment  at the meeting,
and subsequently have received additional written comments from business interests and
State solid waste management officials.

Our work has been informed throughout by the expertise of government officials willing
to share their extensive  knowledge  of  environmental insurance.   In particular, we
appreciate the insights provided by EPA staff in both OSWER and OECA,  and State
regulators familiar with the details of both  RCRA and  Superfund financial  assurance
requirements and the structure and operations of the captive insurance industry. The
active participation of expert EPA staff and State representatives in extended discussions
at the New York  City workshop and in deliberations both before and after the workshop

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assisted the Board in understanding the nature of captive insurance regulation by State
insurance regulators, and the regulatory framework for the use of insurance for financial
assurance purposes under environmental law.

The Concept of Captive Insurance

RCRA Subtitle C, D and I require that regulated facilities provide financial assurance
sufficient to secure funds needed to meet program-specific obligations to properly close,
conduct post-closure care or provide needed corrective  measures.   See,  e.g., 40 CFR
Sections 264.143  (e) (Subtitle  C closure insurance), 264.145(3) (Subtitle C post-closure
insurance), Section  264.146 (combination of closure and post-closure care  insurance),
264.147 (Subtitle C liability insurance); 258.74(d) (Subtitle D closure and post-closure
care insurance and  corrective action).  Superfund response  actions also  often require
financial assurance and  the RCRA regulations provide guidance in these instances.
Insurance mechanisms are one option for meeting these requirements under Federal law.
Available financial  assurance options have included  insurance since 1982 (see 47 Fed.
Reg. at 15033 (April 7, 1982)).

Insurance mechanisms must assure that funds are available once closure or post-closure
begins and in an  amount sufficient to cover the current estimate of costs.  The facility
owner/operator "may receive reimbursements" as these activities proceed (see 40 CFR
264.146; 258.74(d)(4)).  Although as a practical matter facility owner/operators may pay
for closure/post-closure/corrective action as costs are incurred and  not elect  to draw on
the insurance, the relevant federal or state regulator must have unimpeded ability to direct
insurance funds as costs are incurred in the event that the policy holder defaults.  While
the language that  must be used in an insurance policy for financial insurance is explicitly
laid out in the regulations, these provisions do not impose any financial requirements or
limitations on who may issue the policy.

There are two forms of insurance:  "commercial"  insurance and  "captive" insurance.
Captive insurance is distinguished by the initial funding  and restriction of its  coverage
either to one company (so-called "pure" captive insurance where the parent establishes a
captive for its exclusive use) or to an enterprise or risk retention group (e.g., brownfields
redevelopment projects or  a consortium  of interests developing an affordable housing
development).  Captive insurance is used in  areas other  than environmental protection
where corporate parent firms find it to their advantage to  set up a captive to  cover well-
understood  risks  at a  lower cost than  purchasing  insurance  policies available from
commercial carriers.   Workman's  Compensation  has been  cited  as one area where
captives are often used.  The Board  did not attempt to compare other risk areas where
captive insurance  is  used with risks associated with environmental protection.

EPA's Office of the Inspector General in September 2005  summarized concerns which
have been raised regarding the use of captive insurance for financial  assurance purposes.

      "Captive insurance is defined as insurance issued  by a wholly-owned subsidiary
      of the company being insured.   The financial  health of the  captive insurance
      company is closely tied with  the parent company, so if the  company encounters

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       financial  difficulties there is no guarantee that the captive insurance company
       would retain  the  necessary resources to fund closure and post-closure.  This
       concern was expressed in our 2001 report and the ASTSWMO paper.  Although
       we found no specific instances of financial  assurance  failure associated with
       captive insurance, States  and  regions remain concerned because there is  no
       independence of risk between  the  corporate parent and the company insured."
       Office of the Inspector General, Continued EPA Leadership Will Support State
       Needs for Information and Guidance on RCRA Financial Assurance, Report No.
       2005-P-00026,  page   15-16   (September   26,  2005)(hereafter   2005   IG
       Repori)(updating and superseding a 2001 report by the  Office of the Inspector
       General).

The  remainder  of this report describes specific issues  raised in our discussions with
stakeholders on this topic before turning to findings and recommendations. In particular,
we summarize the States' specific concerns with captive insurance, as expressed in  the
June 27  workshop.  These concerns  were consistent with the recent EPA Inspector
General's report summarizing State views on captive insurance.  We then summarize  the
information  provided by  State  governmental  and  financial community panelists with
regard to captive insurance, as well as the views of companies who now use captive
insurance.   Finally,  we  offer  our  evaluation  of the  materials presented  to us, and
recommendations to EPA on how it can strengthen the reliability and transparency of
captive insurance for financial assurance.

State Concerns about Captive Insurance

According to the September 2005 Inspector General's report cited above, 13 states do  not
accept captive insurance as a financial  assurance mechanism — 2005 IG Report at 14. A
further reflection of this lack of confidence was that presentations at  the  June 2006
workshop suggested that  other jurisdictions, while  not prohibiting the  use  of captive
insurance in principle,  impose restrictive requirements on these policies which tend to
make them noncompetitive and unavailable in practice.

The  three State regulators participating in the New York workshop were consistent in
raising concerns about captive insurance:

   •  Captive   insurance  is  perceived  to  pose  a  high  risk  because of lack  of
       independence (and thus true transfer of risk) between the captive subsidiary and
       its insured parent.

   •  State environmental regulators  are concerned that captive insurers may not be
       subject to minimum requirements with regard to capitalization, minimal reserves
       or encumbrances on reserves (e.g., loans back or reliance on lines of credit).

   •  Where a captive insures an asset of declining value, like a landfill approaching
       capacity, there is no mechanism to compensate for the increasing risk of financial
       failure.   State environmental  regulators have  limited  experience  with  the
       insurance regulatory structure or with State insurance commissions.  In general,

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       State  regulators thought that the assurance of quality  oversight  provided by
       independent third-party review and ongoing oversight (such as that provided by
       investment ratings for companies using the financial test, as recommended by
       EFAB in our earlier report) would  be valuable.   However, State regulators
       cautioned that the third party reviewing agency would need to fully understand
       the particular characteristics of the environmental risks being insured by a captive
       insurance firm.

   •   Where a captive is domiciled  in a jurisdiction other than the State of the facility at
       issue, the host State is concerned about licensing  requirements  and continued
       oversight  by  the domicile  jurisdiction's  insurance  regulators.   States  are
       concerned by the lack of consistent regulatory oversight in the states of domicile.

Testimony by the Captive Insurance Industry and Regulators

The State of Vermont, which operates the largest domestic program for licensing captive
insurance companies, provided extensive background on its activities. This discussion
was supplemented by AM Best's presentation on the nature of their assessment of captive
insurers' credit quality.  The State of Vermont and AM Best shared the perspective that
captive insurers  are  evaluated with regard to licensing with rigor equal  to  commercial
insurers when evaluating the numeric fundamentals, with additional review of the quality
of the parent employing a captive and of the business plan for the captive itself.

With regard to specific concerns raised about captive  insurance,  the panel representing
State licensing and private sector oversight provided the following pertinent information:

   1.  Understanding  captive insurance  licensing  requirements:  Although the panel
       provided   an  excellent basis on which  to improve understanding of  captive
       insurance, they did not articulate in detail the practices of licensing  programs by
       States  other than Vermont, or by overseas jurisdictions  which license  captive
       insurers.   Given that insurance is regulated at the  State rather than the federal
       level,  State insurance regulations are not uniform. One State's program may not
       provide enough of a framework by which environmental  regulators  can evaluate
       the quality of captive policies offered by  organizations licensed in jurisdictions
       other than Vermont.

   2.  Independence:  The panel stated that in their experience, in jurisdictions which do
       license captives, the  factual terms of evaluation and requirements with regard to
       ability to cover claims are equivalent for captive and commercial insurers.  These
       licensing practices, and the nature of rating agencies' oversight, also constitute a
       check upon parental  control of and relationship with its captive. In  addition, the
       State  of  Vermont imposes  independent  review authority on aspects  of  the
       captive's operations (e.g., the licensing authority must pre-approve loans, changes
       to the business plan, or changes in coverage).  For captives rated by AM Best,
       there is an additional independent review, again of aspects of operations material
       to financial assurance (asset  value and risk, credit  risk exposure, loss reserves,

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       premiums written and, for captives, long-term performance, diversification and
       the financial strength of the captive's parent company).

   3.  Minimum requirements:  As noted  above, the State of Vermont  and AM Best
       stated that they regularly review both commercial and captive insurers using equal
       standards with regard to capitalization, reserves,  and encumbrances on reserves
       (e.g.,  Vermont  must  pre-approve  loan backs and must  have immediate  and
       unencumbered access to evergreen  Letters  of Credit).   However, the licensing
       jurisdiction for a substantial  number of captives is outside of the United  States.
       There are no universally recognized minimum standards.  The requirements of the
       varying jurisdictions, both domestic and foreign, may vary considerably.

   4.  Risk of Failure:  The financial assurance requirements for OSWER programs,  at
       the federal level at least, do not have guidelines for minimum financial strength  of
       the companies issuing insurance policies, commercial or captive.  Both Vermont
       and AM Best evaluate diversification of assets  and continually  monitor asset
       value and risk. AM Best's rating process specifically analyzes the captive's ability
       to underwrite effectively, generate capital growth from  ongoing operations and
       pay claims readily. On a  stand-alone  basis the  captive insurer must have the
       financial means to support the policies written. Significant developments at the
       captive or the parent can result in rating change,  reflecting the changed level  of
       risk of failure.

   5.  Third Party Review:  In response to questions, Vermont, AM Best, the insurance
       industry and State representatives agreed that third-party fiscal evaluation in the
       form of a secure rating from AM Best or  comparable  entities, or the parent's
       ability to satisfy the financial test (or possession of investment-grade  credit with
       agencies such as Standard and Poor's and Moody's), is  important corroborating
       evidence of fiscal soundness for companies seeking to use captive insurance.

Users of Captive Insurance

The September 2005 Report by the EPA Inspector General summarized the views of the
industry it polled  as follows: "Industry representatives generally considered the financial
assurance mechanisms to be adequate, at least for large companies." (2005 IG Report at
17).   This view  has been reiterated specifically with regard  to captive insurance  in
comments to the Board in the public comment period and in written comments submitted
subsequent to the June 27 meeting.

As mentioned above, industry representatives noted  that some States refuse to allow the
use of captive insurance for meeting financial assurance requirements. Users of captive
insurance cited the following reasons why they did so:

   •   ability to obtain tailored insurance  coverage  at reasonable  rates in a constrained
       commercial market;

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    •   reduced costs (e.g., the risks are better understood and managed since the parent is
       expert in the risks insured, and captives' investment income can be used to cover
       losses); and

    •   access to the reinsurance market, although this market is limited for captives.

Written comments submitted on behalf of the Superfund Settlements Project  and the
RCRA Corrective  Action Project described their members' views of the value of captive
insurance as follows:   "Captive insurance  is a sophisticated and  legitimate financial
strategy that benefits the large and medium-sized insurance consumer by  providing it
with greater control over  its risk programs,  the  ability  to  achieve cost  savings  and
efficiencies that are  passed on  throughout its organization, and the opportunity to
customize the type(s) of insurance  coverage that it purchases."  Superfund Settlements
Project/RCRA  Corrective  Action  Project,  Letter to Mary  Francoeur and  Stanley
Meiburg, Environmental Finance Advisory Board (July 28,  2006).

EFAB's ability to evaluate the current use of captive insurance was hindered by a lack of
consistent national information on the extent to which captive insurance or other financial
assurance mechanisms are used by private sector firms. Additional information on this
topic  may  result from EPA's ongoing national initiative  to improve compliance with
financial assurance requirements and other ongoing Agency analyses.

Findings and Recommendations of the Board

Findings:

Consistent with our findings with regard to use of the Financial Test for financial
assurance purposes,  we find that the use of independent  credit analysis (i.e.,  credit
ratings) is a cost-effective  mechanism for  demonstrating the financial strength of a
captive insurer.  Insurance credit rating institutions  like AM Best distinguish secure from
non-secure insurers,  much as rating institutions like Moody's and Standard and Poor's
distinguish investment from non-investment grade credit.  These ratings help address the
limited capacity of State regulatory bodies to  undertake extensive credit analysis.  It is
important that the  rating be current (reviewed within a specific length  of time,  perhaps
the past year).

Because  captive insurance has been of particular  concern to a number  of states, it is
especially important that the licensing authority for any captive insurance firm allowed to
write  policies for use in meeting RCRA or Superfund financial assurance requirements
for closure,  post-closure  care, corrective action  or response action be rigorous  and
transparent in its procedures.  The oversight program adopted by the State of Vermont
appears to apply  strong licensing standards for captive insurance companies.    These
standards include:

    •   Initial applications must be detailed and will not be  approved unless the captive is
       capitalized  sufficiently to meet its obligations.

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   •   Application   requirements   include   audited  financial   statements,   actuarial
       certification  of loss reserves calculated by an approved actuarial firm,  annual
       reporting, parent company financial statements and regulatory detailed review by
       the jurisdiction of licensure.

   •   Enforceable  requirements for pre-approval of loan backs (or  up-streaming of
       dividends), change in business plan or claim  coverage, and  access to evergreen
       Letters of Credit (if used for capitalization) in the event of financial difficulty.

In addition, the Board agrees with Vermont officials about  the importance of  having
sufficient staffing and funding resources to ensure effective oversight.

It  is the Board's opinion that these safeguards, embodied in formal State rules  and
implemented with consistent and effective state oversight,  strengthen  captive insurance as
a reliable means of providing financial assurance.

Response to EPA's Charge:

With regard to the three questions posed by EPA, the Board responds as follows:

       (1)   Should  there be minimum capitalization  requirements for  captive  or other
insurers who provide policies for financial assurance and,  if so, what requirements would
best assure funds are available for protection of the environment, including closure, post-
closure, corrective action and other environmental clean-up?  The Board concludes that
minimum capitalization requirements are necessary. It also concludes that a well-known
and respected insurance rating agency, such as  AM Best, is  in the  best position to
determine what the  minimum capital and surplus level should be for a particular  insurer
to  assure availability of funds for the amount and types of risks being  written.

       (2)   Should policies written  by captives and commercial insurers be treated as
equally acceptable mechanisms? Yes, assuming they meet licensing standards similar to
those noted  above with regard to the program implemented by the State of Vermont  and
are subject to effective, independent oversight.

       (3)   Should  the language of policies written by captives differ in any way from
those  issued by commercial  insurers?  No.   Policies issued to  provide coverage  for
financial assurance  purposes should clearly meet all applicable regulatory requirements,
and the policy language should reflect the adequacy of coverage in all instances.

Recommendations:

The State of Vermont and AM Best have addressed many  of the Board's questions about
their written requirements for licensing of captives.  However, at this  time there is no
standard requirement for captives to be either licensed in a jurisdiction with requirements
equivalent to those imposed  by either the  State of Vermont, or  by other independent
review entities. It is understandable why States may not have full confidence in the use of
captive insurance  policies as  a financial  assurance  mechanism  absent comparable

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understanding of  how these captive insurance policies  work  and are  overseen by
insurance regulators in jurisdictions  other  than Vermont,  or  by entities that are not
certified by an independent third party ratings agency.

As  a consequence, with respect to captive insurance as a financial assurance tool, the
Board recommends that EPA require that:

    (1) If the financially responsible affiliate uses a captive insurance policy to provide
financial assurance, that the  affiliate either (a) pass the financial test and unconditionally
guarantee the obligations of the captive or (b) possess investment grade rating, or

    (2) That the  captive entity issuing the insurance policy have a rating of "secure" or
better by AM Best or comparable rating agency.

    (3)  The rating of the captive must be formally reviewed  by the rating  agency
annually, at a minimum, and the rating report must be furnished to those States where a
captive  policy is being used for financial assurance. Further, States must be notified
within  30-days of a rating change, an outlook change, or a rating being placed under
review.

The Board recognizes that a  requirement with respect to ratings of entities issuing captive
insurance policies  has implications for commercial insurance firms as well.  This is one
issue that we expect to explore in subsequent deliberations.

The Board also recognizes  that these recommendations could require  additional EPA
evaluative criteria.  The Board  has heard differing opinions about whether these criteria
could be established through  guidance, or  whether notice and comment rulemaking
should be pursued.  The question of how the Agency  should proceed is beyond the scope
of  the  Board.   We  note  that although rulemaking  is  strongly preferred by  State
environmental regulators, it can be time and  resource intensive.  We also understand that
while guidance could be issued more quickly, it is not binding, and EPA cannot require
more  nationally consistent   RCRA financial assurance measures in the  absence of
amended Federal rules.

One option the Agency could consider, in the absence  of amended rules, is to develop
information now which would assist State environmental regulators in evaluating entities
issuing captive insurance policies whose parents would not now pass the financial test or
who do not possess secure ratings themselves. This information could include examples
of best practices by licensing agencies such as those cited above as practices by the State
of Vermont.  In creating this information, EPA  could work with the State of Vermont,
other States and international licensing boards to outline critical  elements of regulatory
oversight, articulate desirable working practices that  may be insufficiently articulated in
the  formal  regulatory framework,  and provide guidelines to evaluate whether licensing
agencies have sufficient resources to adequately enforce  standards  (e.g., fee for service to
assure adequate staffing).
Of course, an entity that utilizes a captive may continue  to satisfy  the financial assurance
requirements if  it  meets the financial test  itself or  secures the appropriate corporate
guarantee.  In such cases, it would not be necessary to consider the captive's rating.

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\
          \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           I                      WASHINGTON, D.C. 20460
                                               25
                                                                               OFFICE OF
                                                                             SOLID WASTE AND
                                                                           EMERGENCY RESPONSE
   Mr. A. James Barnes
   Chair, Environmental Financial Advisory Board
   United States Environmental Protection Agency
   1200 Pennsylvania Avenue NW
   Washington, D.C. 20460

   Dear Mr. Barnes:

         Thank you for your letter of March 20, 2007, to Administrator Johnson on the
   Environmental Financial Advisory Board's report that explores the use of captive insurance as a
   financial assurance tool in the Agency's waste and remediation programs.  My staff and I
   appreciate all of the work the Board has done on this important topic, and recognize the Board's
   consultation with a broad range of interested parties. EPA greatly appreciates the Board's
   inclusion of State and EPA staff in many of its meetings on this topic. We find that the Board's
   input on captive insurance, as well as other issues, is extremely valuable as we consider moving
   forward with improvements to the RCRA financial assurance requirements.

         In response to its charge, the Board presented several important findings and
   recommendations on captive insurance that the Agency will take under advisement. Consistent
   with the Board's findings with regard to the use of the financial test for financial assurance
   purposes, the Board found that the use of independent credit analysis is a cost-effective
   mechanism for demonstrating the financial strength of a captive insurer. We note that the Board
   will also examine the issue of ratings as it looks at commercial insurers.

         With respect to the Board's earlier recommendations on the financial test, I recently
   directed my staff to initiate the Agency's Action Development Process (ADP) to more fully
   analyze possible regulatory options concerning the RCRA Subtitle C financial test. By entering
   into the ADP, EPA is acknowledging that the current financial test does present a number of
   issues that need to be explored. One of the options that will be analyzed through this process is
   the recommendation from the Board that EPA include an independent ratings requirement to
   Alternative I of the current financial test. Although initiating the ADP is the first step in
   pursuing regulatory alternatives, a possible outcome of the process could be to address these
   concerns through implementation  assistance rather than pursuing regulatory changes.
                                  Internet Address (URL) • http://www.epa.gov
          Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Postconsurner, Process Chlorine Free Recycled Paper

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       EPA appreciates the expertise and experience that the Board brings and values the
insights it can provide.  EPA looks forward to receiving the findings in response to the other
questions presented to the Board.

                                         Sincerely,
                                         Susan Parker Bodine
                                         Assistant Administrator

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