ENVIRONMENTAL FINANCIAL ADVISORY BOARD
Members
A. James Barnes, Chair
Terry Agriss
John Boland
George Butcher
Donald Correll
Michael Curley
Rachel Denting
Kelly Downard
Mary Francoeur
James Gebhardt
Scott Haskins
Jennifer Hernandez
Keith Hinds
Langdon Marsh
Mathilde McLean
Greg Mason
Karen Massey
Lindene Patton
Sharon Dixon Peay
Cherie Rice
Andrew Sawyers
Doug Scott
Greg Swartz
Leanne Tobias
Steve Thompson
Jim Tozzi
Chiara Trabucchi
Justin Wilson
Stan Meiburg
Designated
Federal Official
Honorable Mathy Stanislaus
Assistant Administrator
Office of Solid Waste & Emergency Response
U.S. Environmental Protection Agency
Washington, D.C. 20460-0001
Dear Mr. Stanislaus:
The Environmental Financial Advisory Board (EFAB) was asked by the
Office of Solid Waste and Emergency Response to review a range of questions
concerning the financial assurance requirements for programs established under
the Resource Conservation and Recovery Act (RCRA). This report addresses the
use of commercial insurance as a financial assurance tool, and is the third in a
series of reports responding to this request. Our earlier reports addressed the use
of the financial test/corporate guaranty, and captive insurance. These reports can
be viewed on the EPA website at www.epa.gov/efinange/efabpub.htm.
EFAB was charged with addressing three questions regarding Commercial
Insurance: (I) What are the strengths and pitfalls of insurance?; (2) Should there
be minimum capitalization for insurers who provide policies for financial
assurances 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?; and (3) Many people have suggested
standardized policy language for insurance. Would this be advisable and, if so,
how might it be developed?
EFAB conducted a workshop in New York City to focus on the use of
insurance, at which time EFAB heard from insurance carriers, users of insurance,
representatives of OSWER, and three state representatives familiar with the use of
insurance for RCRA financial assurance. EFAB also heard from attorneys
knowledgeable about the use of insurance as a form of financial assurance, and
from consultants specializing in the area. EFAB also received public comment at
the meeting.
This report is the result of many months of deliberations, hi general,
EFAB believes that in many cases insurance is a viable, valuable mechanism for
providing financial assurance. It is an option that may be even more useful during
times of economic difficulty, when the market for alternative financial assurance
Providing Advice on "how to pay" for Environmental Protection
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instruments may be restricted. EFAB believes that any changes made to the use
of insurance should not result in insurance becoming impractical, unavailable, or
prohibitively expensive as a financial assurance instrument. However, EFAB also
believes that insurance should provide a level of protection to the regulatory
agency and the public comparable to other financial assurance mechanisms, as
explicitly stated under the policy and up to the stated limit of liability, in the event
the owner/operator is unable to meet its closure, post-closure or corrective action
obligations. EFAB believes that it is essential that insured parties, insurance
companies, and regulatory agencies operate with a common understanding of the
obligations and limitations of insurance as a financial assurance instrument.
Finally, as it did for captive insurance, EFAB supports the concept of a third party
evaluation of the soundness of providers of insurance as a financial assurance
instrument.
EFAB appreciates the continuing opportunity to provide financial advisory
assistance to EPA on issues of national importance. We hope that you find our
recommendations constructive and useful.
Sincerely,
V 1'"
A. James Barnes A. Stanley Meiburg
Chairman Designated Federal Officer
Enclosure
cc: Lisa P. Jackson, Administrator
Bob Perciasepe, Deputy Administrator
Barbara J. Bennett, Chief Financial Officer
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Environmental Financial Advisory Board
EFAB
A. Stanley Meiburg
Designated Federal
Officer
Members
A. James Barnes, Chair
Terry Agriss
John Boland
George Butcher
Donald Correll
Michael Curley
Rachel Deming
Kelly Downard
Mary Francoeur
James Gebhardt
Scott Haskins
Jennifer Hernandez
Keith Hinds
Langdon Marsh
Greg Mason
Karen Massey
Mathilde McLean
Linden Patton
Sharon Dixon-Peay
Cherie Rice
Andrew Sawyers
Doug Scott
Greg Swartz
Steve Thompson
Leanne Tobias
Jim Tozzi
Chiara Trabucchi
Justin Wilson
Financial Assurance: Commercial
Insurance as a Financial Assurance Tool
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.
February 2010
Printed on Recycled Paper
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REPORT ON COMMERCIAL INSURANCE
I. CHARGE
At the request of the U.S. Environmental Protection Agency (Agency), the
Environmental Financial Advisory Board (Board) is examining questions concerning the
financial assurance requirements established under the Resource Conservation and
Recovery Act (RCRA).
These requirements address closure, post-closure, corrective action and other aspects of
the RCRA Subtitle C hazardous waste program, the Subtitle D non-hazardous waste
program, and the Subtitle I underground storage tank program. The Board acknowledges
that the financial assurance mechanisms and requirements for the RCRA Subtitle C and
D programs are different than those established for the underground storage tank program
under RCRA Subtitle I. Notwithstanding these differences, the Board notes that
administrative and litigation experience related to the use of underground tank insurance
is applicable to the discussion of the RCRA Subpart H financial assurance requirements.
Specifically, the statutory and regulatory language of the RCRA financial assurance
program underpins the design of the UST financial assurance program; and as a
consequence, the Agency's position, administration and litigation precedent are relevant
to the subject matter of this report. As such, where relevant, this report includes
reference to financial assurance programs beyond the RCRA Subpart H program to
assure a full and fair description of the concerns with respect to the use of insurance as a
means of demonstrating financial assurance. The Board limits its discussion to financial
assurance as provided for under RCRA. It does not address the use of financial assurance
under the Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), because the program administration, regulatory terms and statutory
authorities are not bound by the RCRA financial assurance provisions.
The financial assurance requirements established under the RCRA program are complex
and multi-faceted. For this reason, in collaboration with the Agency, the Board is
addressing discrete, manageable pieces of the inquiry into the use of insurance as a means
of demonstrating financial assurance. For example, the Board provided its views on the
"financial test" and "captive insurance" to the Agency on January 11, 2006 and March
20, 2007, respectively. In addition, the Board views the accuracy of cost estimates as a
matter of paramount importance and plans to address this issue in a separate report. This
report on commercial insurance addresses insurance used to satisfy financial assurance
for closure, post-closure and third party liability requirements.
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Specifically, the Board was charged with the following questions relating to insurance:
What are the strengths and pitfalls of insurance?
Should there be minimum ratings for insurers that provide financial
assurance?
Should there be minimum capitalization requirements for captive or other
insurers which 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?
Should insurance policies written by captives and commercial insurers be
treated as equally acceptable mechanisms?
Should the language of insurance policies written by captives differ in any
way from those issued by commercial insurers?
Is standardized policy language for insurance advisable? If so, how might it
be developed?
What are appropriate safeguards (such as capitalization, rating, coverage,
etc.), if any, for insurance for a Brownfields cleanup?
By letter dated March 20, 2007, the Board partially addressed these questions by focusing
on issues relating to captive insurance. Specifically, the Board answered three questions
related to captive insurers 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? Yes. The Board concludes that minimum capitalization
requirements are necessary. It also concludes that a nationally recognized
statistical rating organization (NRSRO), such as AM Best, is in the best position
to determine the minimum capital and surplus levels necessary to ensure that a
particular insurer will have funds available commensurate with the amount and
types of risks underwritten.
(2) Should policies written by captives and commercial insurers be
treated as equally acceptable mechanisms? Yes, assuming they meet the same
licensing standards as those noted with respect to the program implemented by the
State of Vermont, and assuming the insurers are subject to effective, independent
oversight.
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(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 purposes of financial assurance should clearly meet all applicable
regulatory requirements, and the policy language should reflect the adequacy of
coverage in all instances."1
The Board further recommends that a captive insurance policy may be used as a financial
assurance tool, if the captive carrier meets certain tests set forth in the report
accompanying the Board's March 20, 2007 letter and meets the general regulatory
requirements established for commercial insurers.2
The current report addresses the requirements for commercial insurance, as a financial
assurance tool. In June 2008, the Board conducted a workshop in New York City to
focus on the use of insurance, at which time the Board heard from insurance carriers,
users of insurance, representatives of OSWER, and three state representatives familiar
with the use of insurance for RCRA financial assurance. The Board also heard from
attorneys knowledgeable about the use of insurance as a form of financial assurance, and
from consultants specializing in the area. The Board received public comment at the
meeting.
This report is the result of many months of deliberation. The Board recognizes that a
divergence of opinion exists between the regulators, the regulated community and third
parties with respect to the legal parameters underpinning the use of financial assurance.
Specifically, the Board recognizes that divergences of opinion exist with respect to
conflict of laws involving the regulation of insurance and the regulation of environmental
issues. These divergences of opinion manifest in ongoing and periodic litigation. The
Board is not in a position to assess or resolve matters at issue in subject litigation. Rather,
the Board's position is to offer practical, financially-oriented recommendations designed
to assist the Agency in achieving its strategic objectives. It is this practical advice on
which the Board's deliberations have focused, and which is the subject of this report. In
this report, the Board focuses on providing meaningful responses to the questions posed
by the Agency. The Board leaves it to the Agency to weigh the recommendations offered
below in the context of its statutory authority and established public policy framework for
financial assurance.
II. BACKGROUND & CONTEXT
A. The Nature of Insurance
An insurance policy is a contract between two parties, the insurer and the insured.
Generally, the insurance policy covers specific risks, as stated in the policy and up to a
prescribed limit of liability (i.e., a dollar amount) specified in the policy. Depending on
the nature of the policy, the insurer agrees to pay, pay on behalf of, or reimburse the
1 See page 7 of the Board's report accompanying the March 20, 2007 letter.
2 See pages 6-8 of the report accompanying the letter.
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policyholder(s) under triggering conditions specified under the terms and conditions of
the policy. In general, such conditions might include:
1. The occurrence of a policy triggering event, as such events are defined under
the terms and conditions of the policy;
2. Satisfaction of the conditions of the policy (e.g., providing required notice,
payment of premium, etc.) have been met;
3. Determination that exclusions either are not applicable or apply only to certain
components of the claim; and
4. Satisfaction of all other requirements and conditions of the policy (e.g. a
policy procured by fraudulent means may be void ab initio in some cases).
In exchange for this protection, the insured agrees to pay a policy premium to the insurer.
Depending on the agreed-upon policy terms, and the financial condition of the insured,
this premium payment may be paid "up front" or over a period of time. The dollar
amount of the premium is based primarily on the insurer's assessment of the covered
risks (i.e., likelihood that the risk will manifest and a claim will be made against the
policy).
The terms of the insurance policy may result from negotiations between the insurer and
the insured; or, state law may prescribe some or all of the terms (e.g., as in the case for
Workman's Compensation and Employer's Liability, Homeowner's Coverage).
Commercial insurance also may be used to comply with the laws and regulations
concerning financial assurance.
The RCRA Subpart H, e.g., Subtitle C and Subtitle D, financial assurance regulations do
not mandate specific policy language for insurance policies. Instead, the owner or
operator shall provide a certificate from the insurer which states: (1) the policy conforms
to the requirements of the regulations, and (2) the insurer agrees that any inconsistent
provisions of the policy are amended to eliminate such inconsistencies.
In the context of RCRA Subtitle I financial assurance provisions for Underground
Storage Tanks, some regulatory agencies have taken the position that the insurance policy
covers risks that appear to be excluded under traditional insurance law and the specific
language of the policy.3 As evidenced by litigation, this position reflects a divergence of
opinion involving the regulation of insurance and the regulation of environmental issues,
as noted above. In certain jurisdictions, the consequence of the regulator's legal position
may be that insurance is rendered unavailable or becomes prohibitively expensive,
Another potentially unintended consequence of the regulator's position may be that
insurance, as a means of financial assurance, is treated like surety, and therefore becomes
subject to applicable surety regulations, which may affect availability, price, terms and
conditions.
3 See Zurich American Insurance v. Whittier (9th Circuit, 2004). Note, this case relates specifically to the
financial assurance provisions underpinning the Underground Storage Program (Subtitle I). The same
issues have not, to date, been tested under other RCRA Subpart H, e.g., Subtitle C or Subtitle D, provisions.
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Further, the nature of risks for which insurance provides protection varies. For example,
companies may seek insurance to:
S Manage environmental risks which are known to manifest on occasion at
regulated sites, using insurance as a risk transfer mechanism.
S Manage risks of cost overruns associated with known, as well as unidentified or
unknown risks.
•S Manage both the probability of an environmental risk manifesting, as well as the
potential for a cost overrun associated with its concomitant remediation
obligations, because the company knows neither the extent of possible
environmental contamination, nor the cost of remediation.
In general, a company's decision as to which type of insurance product to purchase is a
function of administrative risk and risk arising from governmental decision-making, as
well as a function of the advancement in science before (and sometimes after) discovery
of the event and/or its remediation.
According to witnesses who presented before the Board, and to conversations with EPA
and State officials, the circumstances involving the transfer of risk of cost over-runs for a
defined or unknown environmental risk is less likely to occur in the case of closure or
post-closure, and more likely to occur when dealing with RCRA corrective action
requirements. Regardless of the situation, the use of insurance as a financial assurance
mechanism is intended to provide assurance to the regulatory agency that closure, post-
closure and/or corrective action will occur when necessary, within the conditions and
extent of coverage provided by the policy.
B. The Statutory Framework
Congress through a series of Acts, including the Solid Waste Disposal Act of 1965, the
Resource Conservation and Recovery Act of 1976, and the Hazardous and Solid Waste
Amendments of 1984, enacted legislation collectively known as the Resource
Conservation and Recovery Act (or RCRA). Generally, RCRA places primary
responsibility for closure and post-closure obligations of a covered facility's
environmental obligations, as well as any corrective action that may be required, on the
owner and operator of the facility.
The statute at 42 USC §6924 (a)(6) provides that the Administrator of the Agency shall
set standards by regulation for financial responsibility of the owners and operators.
At USC 42 § 6924 (t), the statute further provides that:
(1) Financial responsibility.. .may be established.. .by any one,
or any combination, of the following: insurance, guarantee,
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surety bond, letter of credit, or qualification as a
self-insurer. In promulgating requirements under this section,
the Administrator is authorized to specify policy or other
contractual terms, conditions, or defenses which are necessary
or are unacceptable in establishing such evidence of financial
responsibility in order to effectuate the purposes of this chapter....
(3) The total liability of any guarantor shall be limited to the aggregate
amount which the guarantor has provided as evidence of financial
responsibility to the owner or operator under this chapter....
(4) For the purpose of this subsection, the term "guarantor" means any
person other than the owner or operator, who provides evidence of
financial responsibility for an owner or operator under this section.
C. RCRA Financial Assurance Regulations
The Code of Federal Regulations at 40 CFR 264/265 Subpart H sets forth allowable
mechanisms for an owner or operator of a hazardous waste treatment, storage or disposal
("TSD") facility "to establish financial assurance" in order to assure that funds necessary
to satisfy closure and post-closure care and third-party liability are available. The Code
of Federal Regulations at 40 CFR 257/258 sets forth allowable mechanisms for new and
existing Municipal Solid Waste Landfills - the management of non-hazardous solid
waste.
Financial assurance options delineated by the regulations under RCRA Subtitle C and
Subtitle D include: (1) trust funds, (2) surety bonds guaranteeing payment or
performance, (3) letters of credit, (4) insurance, (5) proof of financial responsibility by
the owner or operator in the form of a corporate financial test, or (6) guaranty of a party
with a 'substantial business relationship' to the owner or operator. With respect to
corrective action, the regulatory requirements under RCRA at 40 CFR 264.101, require
demonstration of financial assurance, but do not specify the type or nature of the financial
mechanisms that may be used to comply; for example, the section does not refer to the
financial mechanisms delineated at 40 CFR 264.151. The Board does not wish to limit
the financial mechanisms available for corrective action to those set forth in the RCRA
Subtitle C and Subtitle D regulations. However, the Board's comments on these
regulations are similarly applicable to corrective action to the extent similar financial
instruments are used.
The above-listed financial instruments are designed to satisfy the financial assurance
requirement in different ways. For example, the surety of a payment or performance
bond "must be liable on the bond obligation when the owner or operator fails to perform
as guaranteed on the bond", whereas the trustee of a trust is obligated to "make payments
from the fund as the EPA Regional Administrator [or delegated state authority] shall
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direct."4 Moreover, the regulations under RCRA Subtitle C and Subtitle D establish
different requirements for the parties providing (or underwriting) the financial assurance
instrument. For example, the surety of a payment or performance bond must be listed on
Circular 570 of the U.S. Department of the Treasury. The issuing institution of a letter of
credit must have its letter of credit operations regulated and examined by a federal or
state agency.
Both the RCRA Subtitle C and Subtitle D regulations require that the insurer be licensed
to transact the business of insurance, or be eligible to provide insurance as an excess or
surplus lines insurer, in one or more States. Neither the RCRA Subtitle C, nor the
RCRA Subtitle D, regulations establish minimum requirements concerning the financial
strength of the insurer. Further, neither set of regulations provide specific (standardized)
language for an insurance policy used to comply with the financial assurance provisions.
Rather, the closure regulations at 40 CFR 264.143(e) and at 40 CFR 265.143(d), and the
post-closure regulations at 40 CFR 264.145(e) and at 40 CFR 265.145(d) specify several
requirements that the owner or operator must meet, and terms and conditions that must be
provided for in the insurance policy.
For example, the closure and post-closure regulations require that the applicable
insurance policy assure that the insurer shall pay out funds upon the direction of, and to
the party specified by, the governing regulatory agency. The regulations also require that
the limit of liability of the insurance policy be at least equal to the current estimated cost
for the event(s) covered, unless the insurance policy is being used as part of a
combination with other allowable financial mechanisms (i.e., trust fund, surety bond
guaranteeing payment, or letter of credit).
With respect to the use of commercial insurance as a form of financial assurance, the
RCRA Subtitle C regulations for hazardous waste require the owner or operator to
provide the governing regulatory authority with a "certificate of insurance," as provided
for at 40 CFR 264.15l(e) within a specified time frame. A similar provision does not
exist under the Subtitle D regulations for non-hazardous solid waste management. The
certificate of insurance must have the following exact language (except that instructions
in brackets are to be replaced with the relevant information and the brackets deleted).
The text highlighted in bold below conforms the policy to the regulations.
Certificate of Insurance for Closure or Post-Closure Care
Name and Address of Insurer
(herein called the "Insurer"):
Name and Address of Insured
(herein called the "Insured"):
4
See 40 C.F.R. pt. 264.
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Facilities Covered: [List for each facility: The EPA Identification
Number, name address, and the amount of insurance for closure
and/or the amount for post-closure care (these amounts for all
facilities covered must total the face amount shown below].
Face Amount:
Policy Number:
Effective Date:
The insurer hereby certifies that it has issued to the Insured the
policy of insurance identified above to provide financial
assurance for [insert "closure" or "closure and post-closure care"
or "post closure care"] for the facilities identified above. The
insurer further warrants that such policy conforms in all respects
with the requirements of 40 CFR 264.143(e), 264.145(e), 265.143(d),
and 265.145(d), as applicable and as such regulations were constituted
on the date shown immediately below. It is agreed that any provision
of the policy inconsistent with such regulations is hereby amended
to eliminate such inconsistency. [Emphasis added.]
Whenever requested by the EPA Regional Administrator(s) of the U.S.
Environmental Protection Agency, the Insurer agrees to furnish to the
EPA Regional Administrator(s) a duplicate original of the policy listed
above, including all endorsements thereon.
I hereby certify that the wording of this certificate is identical to the
wording specified in 40 CFR 264.15l(e) as such regulations were
constituted on the date shown immediately below.
[Authorized signature for insurer]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
D. DISCUSSION OF CHARGE QUESTIONS
1. STRENGTHS AND PITFALLS OF INSURANCE
An insurance policy is a contract between the insured and the insurance carrier. In
general, the regulatory agency is not a party to the contract. However, under certain
circumstances, the regulatory agency may request that it be listed as a beneficiary and/or
be a party to the contract.
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Owners and operators of RCRA Subtitle C and Subtitle D facilities seek insurance for a
variety of reasons. The stated terms and limits of liability established by an insurance
policy will vary depending on the underlying objective of the policy, and the expectations
of the parties bound by the policy. For example, assume that the owner or operator of a
RCRA Subtitle C or Subtitle D facility intends to pay for its closure, post-closure and
corrective action obligations using cash flows directly from its operating activities, from
the sale of assets, or from its affiliates (e.g., a corporate parent). For business reasons, the
same owner or operator chooses not to (or can not) use the corporate financial test as a
financial assurance option. Under the RCRA regulations, the owner or operator is
required to provide a financial instrument to the regulator as demonstration of financial
assurance. In this case, the owner's or operator's primary driver for acquiring insurance
is the need to meet its regulatory obligation to have compliant financial assurance.
In general, insurance may be used either to make the insured whole upon the
manifestation of the covered risk or to compensate an injured party, assuming adequate
coverage has been purchased. An insurer usually makes a payment to the policyholder
once the claim is valued.5 Further, under the RCRA closure, post-closure and corrective
action provisions, an insurance policy may be used in combination with a subset of other
financial instruments, including a letter of credit, surety bond guaranteeing payment or a
trust fund.
The characteristics which evidence both the strengths and pitfalls of insurance are
detailed below.
Strength. Independent Valuation of Risk
The insurance carrier independently evaluates the risk in determining whether to assume
the risk of issuing a policy. The Board heard from experts who suggest that this
independent valuation adds credibility to the cost estimates on which the regulatory
agency relies. However, the accuracy of the cost estimate itself cannot be inferred from
the acceptance by an underwriter; only that the limit of liability stated in the policy can be
satisfied.
When closure, post-closure and, as necessary, remediation for corrective action occurs,
the carrier may independently review the methods and cost of the activities proposed.
This has the advantage of encouraging efficiency and controlling costs; but also can
contribute to the disadvantage of possibly delayed, or denied, payment of a claim. The
Board heard differing views on claims payment. Some regulators stated that insurance
carriers unnecessarily delay or deny claims, while representatives of the insurance
carriers disagreed with this characterization. At times, disputes over payment of claims
have been resolved by litigation.
5 Some insurance carriers view their role as more than paying out a sum of money requested (or demanded)
in the precise amount requested (or demanded). These carriers may wish to make their own assessments to
determine that the amount requested is appropriate, and may seek a voice in the selection of a particular
remedy. These carriers believe that they are experienced in reviewing remedies, and can "add value" or
reduce costs by virtue of their expertise.
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Strength. Flexible Financial Instrument
In general, most insurance policies addressing RCRA closure, post-closure and corrective
action are negotiated on a site-specific basis. As such, insurance represents a flexible
financial instrument that can be tailored to the needs of the insured and the regulatory
agency.
In general, insurance carriers price insurance policies based on the type, expected
frequency and magnitude of risk assumed. For some policies, the primary risk is
environmental, and not the creditworthiness of the insured. In such cases, where the
triggering event of risk is truly fortuitous, the insurance carrier may not require collateral
or impose credit-based restrictions that a provider of other types of financial assurance
may require. If the insurer is willing to assume the risk for costs associated with closure,
post-closure or corrective action, insurance may be available to owners/operators, who
cannot meet the corporate financial test or are unable to obtain other types of financial
assurance (e.g., letter of credit). Insurance sends risk-based price signals in the form of
premiums - how much must the insured pay for the coverage delineated by the policy.
As such, the premiums efficiently reflect assumed risk.
All of the experts who presented to the Board acknowledged that the flexibility inherent
to insurance constitutes a significant advantage.
Pitfall. Complex Contractual Instrument
The Board appreciates that with flexibility comes the potential for complexity. Insurance
policies tend to be complex legal documents, varying from jurisdiction to jurisdiction,
from owner/operator to owner/operator, and from site to site. Experts specializing in the
use of insurance as financial assurance acknowledged challenges in appreciating the
implications of the varying provisions (exclusions, endorsements) underlying insurance
policies. These experts stated that substantial time and effort tends to be devoted to the
administration of insurance policies used to comply with financial assurance
requirements.
Pitfall. Jurisdictional Challenges with Respect to the Interplay of State and Federal
Law
It has come to the Board's attention that some insurance carriers, and at least some
regulatory agencies, have fundamentally differing views on the scope of coverage
provided by an insurance policy, and of the required certificate issued pursuant to the
RCRA regulations at 40 CFR 264.151. In the Board's opinion, these differences of
opinion go beyond questions of interpretation of specific policy language and extend to
the interplay between federal and state environmental regulations and state/general
insurance law, including the resulting impact on the legal obligations of the insurance
carrier.
The Board notes that some carriers and some regulating agencies have fundamentally
differing views on the scope of coverage provided by an insurance policy and of the
10
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required certificate issued pursuant to the RCRA regulations. These differing views go
beyond questions of interpretation of specific policy language, an inevitable consequence
of any complex contract, and reach the extent to which state and general insurance law
affect the carrier's obligations.6 Simply stated, one recurring issue is whether the
insurance policy provides a "guarantee" or simply "assurance" to the regulating agency.
Divergent views of the obligations of the parties furnishing or relying on an insurance
policy create different expectations. In such circumstances, the regulatory agency may
not feel it has the financial certainty that it believes it has with other financial assurance
instruments, such as a letter of credit. Likewise, the insurance carrier may believe it is
required to assume risks and to provide guaranties, for which it did not contract.
The Board notes that all of the experts from whom it received information, including
those who focused on the pitfalls of insurance, emphasized that insurance is a viable,
valuable tool for providing financial assurance. When asked, each presenter stated that
any changes or recommendations concerning the use of insurance as a means of RCRA
financial assurance should not render it prohibitively expensive or unavailable.
2. MINIMUM FINANCIAL REQUIREMENTS FOR INSURANCE
CARRIERS — Minimum Ratings and Capitalization
Each state has a detailed regulatory scheme concerning the use of insurance within its
jurisdiction. The current RCRA regulations do not establish minimum standards for the
financial strength of insurance carriers. Instead, the regulations simply require that
insurance carriers "be licensed to transact the business of insurance, or eligible to provide
insurance as an excess or surplus lines insurer," in at least one state. When asked, no
presenter saw a need for a more stringent federal licensing requirement except as may be
required by existing state law.
As with any financial assurance instrument, including surety bonds and letters of credit,
the strength of the instrument is predicated on the financial strength of the issuing
institution and the underlying underwriting criteria. In the absence of meaningful criteria
measuring the financial strength of the issuing financial institution, the value of the
financial assurance may be questionable.
In response to questions posed by the Board, the presenters from state environmental
agencies stated that they did not have the capacity to evaluate the financial strength of
each insurance carrier. Instead, if inquiries were made, they relied on the determination
of the state regulating insurance agency or on the evaluation of independent third party
entities which rate the financial strength of insurance companies.
Each presenter who was asked stated that there should be minimum requirements to
evidence the financial strength of the insurer. The presenters, who were asked, stated that
a minimum rating of A from A.M. Best or from a nationally recognized statistical rating
' Id. for Whittier v Zipmart
11
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organization (NRSRO) would be appropriate. The exception, the representative of the
State of Washington, stated that a minimum rating of B+ was satisfactory.
The Board previously determined that a captive insurance company which relied on a
rating from an independent agency to establish its financial capacity should have a rating
of "Secure" or better. No presenter suggested that there should be a lesser minimum
standard for commercial insurers than for captive insurance companies.
3. STANDARDIZED LANGUAGE
As the Board understands, not all states receive or review the actual insurance policy,
including endorsements, provided by companies for purposes of complying with RCRA
financial assurance requirements. As a result, many regulators are unaware of the
specific provisions which underpin the policy. Rather, these regulators rely on the
certificate required at 40 CFR 264.151 as proof of compliant financial assurance and
adequate coverage for closure, post-closure and corrective action. Conversely, according
to representatives of both the insurance carriers and the regulators, there are some state
regulators who carefully review and negotiate the insurance contracts. The Board finds
that there is a divergence of views among regulators as to the level of review that is
deemed advisable, as well as the level of review that actually is performed.
While some states have "suggested" or "pre-approved" provisions, the Board is unaware
of any environmental agency that states that specific language is required for insurance
policies, which are used for purposes of demonstrating financial assurance. In some
states, the policies often are negotiated to fit particular risks at a particular site. The
Board, however, heard anecdotal reports that some states are uncomfortable with
insurance as a viable financial assurance instrument and have established restrictive
requirements, such that no or few carriers are willing to underwrite policies in that
jurisdiction.
For example, to the Board's knowledge, no new insurance carriers have entered the
market in California since the state regulatory body introduced "pre-approved" language.
Further, all newly effective insurance policies in California contain the recommended
language.
When asked, every presenter opposed having federally mandated, standardized language
for an entire insurance policy - regardless of whether the individual favored
recommended or pre-approved language or expressed serious reservations about
insurance. As a rationale, each presenter emphasized the flexibility afforded by insurance
in varying situations; federally mandated (or standardized) insurance language would
limit this flexibility. Moreover, when asked, most presenters stated that an insurance
carrier should be required to assume obligations only as explicitly provided for in the
insurance policy, and up to the maximum allowable coverage (or limit of liability). The
representatives of the insurance carriers stated that they underwrite and price insurance
policies based on the underlying terms and conditions of the policies, and the existing
state of the law at the time.
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As stated before, the Board finds that there is fundamental disagreement as to the effect
and meaning of the RCRA regulations and the required certificate which conforms the
insurance policy to the regulations. One state representative contended that the insurance
policy together with the certificate constitutes a "financial guarantee." Representatives
of the insurance carriers, as well as a presenter who was an independent consultant,
argued that insurance is fundamentally a risk management tool, insurance is not a
financial guarantee - insurance represents a contract covering agreed upon risks up to a
financial limit of liability.
RESPONSE TO THE AGENCY'S CHARGE
With regard to the questions posed by the Agency, the Board responds as follows:
1. What are the strengths and pitfalls of insurance?
This question has been addressed in the section entitled Strengths and Pitfalls of
Insurance.
2. Should there be minimum capitalization for insurers who provide policies for
financial assurances 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 existing minimum requirement that an insurance carrier be licensed in one or more
states is not sufficient to assure financial viability but is necessary protection that should
be retained.
The Board believes that this requirement should be augmented with an objective third-
party analysis of the capacity of the carrier to meet its obligations.
3. Many people have suggested standardized policy language for insurance. Would
this be advisable and, if so, how might it be developed?
Answer: Mandatory policy language is not advisable.
E. RECOMMENDATIONS
Minimum Capitalization. Particularly in times of economic uncertainty, the Board
believes that the financial strength of institutions providing financial assurance takes on
increasing importance. In the Board's opinion, the current minimum requirement,
namely that the institution "be licensed to transact the business of insurance, or eligible to
provide insurance as an excess or surplus lines insurer" in at least one state, is necessary
but not sufficient protection. The Board recognizes that not all insurers have equal
financial strength. Establishing a minimum financial standard, in addition to the existing
licensing requirement, may lessen the number of insurance carriers capable of writing
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insurance. This raises the issue of what measure of financial strength would be
appropriate.
The regulatory agencies, which presented at the workshop, readily admitted that they
lacked the capacity to evaluate the financial strength of insurance carriers. The Board
believes that this function may be best served by a nationally recognized statistical rating
organization (NRSRO), such as AM Best, which specializes in objective third-party
analysis of financial viability.
The Board notes that all members agree that there should be minimum requirements to
evidence the financial strength of an insurer underwriting insurance for environmental
financial assurance. The Board also agrees that a minimum acceptable rating from AM
Best or a similar nationally recognized rating agency is appropriate. However, there is a
divergence of opinion among the Board as to what constitutes an appropriate minimum
acceptable threshold rating.
The Board believes that the various financial instruments used for financial assurance
should provide a comparable level of protection to the regulatory agency and the public
against insolvency of the provider of the financial assurance instrument. Such level of
protection should consider both the risk of insolvency of the provider, and the availability
and cost of the product. The Board has not yet examined letters of credit or surety bonds.
Accordingly, the Board is deferring the recommendation of a specific minimum rating for
a third-party provider until such study is complete.
Standardized Policy Language. As stated above, the Board does not recommend
mandatory language for insurance policies for purposes of RCRA financial assurance.
The Board believes that both the regulated community and the public are better served
when insurance policies contain specifically negotiated provisions to meet the
specific characteristics of each insured and each facility. The Board believes that keeping
insurance policy language flexible and targeted to specific sites helps to ensure that
insurance remains an affordable and readily available financial assurance instrument.
Moreover, the Board recommends caution in adopting "recommended," "pre-approved,"
or "suggested" provisions. The states that have done so appear to be pleased with the
results to date. Nevertheless, the Board sees the potential that "recommended" provisions
become de facto required. This may result in limiting the availability of insurance or
possibly other financial assurance instruments in times of economic uncertainty. The
Board is concerned with the different views of the rights and duties of the regulatory
bodies and the insurance carriers under insurance policies. This seems to
be especially the case in situations where the regulatory body is not involved in
negotiating the coverage of the insurance policy, and may not have seen the policy itself.
The Board believes that it is not in the public interest, nor in the interest of the parties to
any contract, in this instance a contract between the insurer and the insured, for the
various parties to enter into a new arrangement under which each has fundamentally
different expectations. Accordingly, the Board encourages involved parties to express
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explicitly their respective expectations. In the event, they are not able to come to an
agreement, the parties may determine that insurance is not available or may not be an
appropriate method for financial assurance in the particular situation. The Board
suggests that the Agency adopt procedures under which the regulatory authority can
specifically agree to limitations contained in the insurance policy, or in the alternative
specifically reject such limitations prior to the time the carrier becomes legally obligated
to issue the policy. If the regulatory agencies fail to adopt such procedures, the insurance
carrier may choose to ask the regulatory body to state affirmatively its position on a
particular insurance policy. If the regulatory body declines to do so, the carrier may
refuse to issue the insurance policy or charge a different premium.
The Board recognizes that the introduction of additional procedures further complicates
what some stakeholders have represented as an already difficult administrative task. The
Board also understands that imposing additional procedures may not eliminate all
contract disputes. Further, these additional procedures may not effectively resolve all
issues that may come about when the insurer is obligated to renew an existing policy, the
regulatory agency seeks to materially change the existing terms of the policy, or the
insured is unable to furnish other satisfactory financial assurance. In some
circumstances, the application of additional procedures may result in insurance not being
available or chosen as a financial assurance mechanism. The Board believes, however,
that the advantages of having common expectations outweighs these disadvantages and
would lessen the suspicion with which some in the regulatory community view insurance
as a viable financial assurance instrument.
The Board recognizes that the use of insurance for financial assurance purposes is a
highly complex area, with which few have expertise. As the presenters at the workshop
pointed out, regulators have widely divergent views on its use. The Board encourages the
Agency to provide outreach and education to state regulatory authorities on the use of
insurance as a financial assurance instrument.
Finally, the Board reemphasizes the importance of cost estimation. Specifically, the
Board believes that developing analytically rigorous and defensible cost estimates is the
cornerstone of all financial assurance instruments, including insurance. A financial
assurance instrument that is predicated on a cost estimate which is too low limits the
amount of financial protection afforded by the instrument. Likewise, a cost estimate
which is too high unnecessarily increases the cost to the insured, and may even render the
financial assurance instrument unfavorable.
CONCLUSION
The Board believes that, in many cases, insurance is a viable, valuable mechanism for
providing financial assurance. It is an option that may be even more useful during times
of economic difficulty, when the market for alternative financial assurance instruments
may be restricted. The Board believes that any changes made to the use of insurance
should not result in the use of insurance being impractical, unavailable, or prohibitively
expensive. However, the Board also believes that insurance as a financial assurance
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mechanism should provide a comparable level of protection to the regulatory agency and
the public, as explicitly stated under the policy and up to the stated limit of liability, in
the event the owner/operator is unable to meet its closure, post-closure or corrective
action obligations.
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
| WASHINGTON, D.C. 20460
JUL 2 1 2010
OFFICE OF
SOLID WASTE AND
EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: EFAB Report on Commercial Insurance as a Financial Assurance Tool
FROM: Mathy Stanislaus
Assistant Administrator
TO: Barbara J. Bennett, Chief Financial Officer
Office of Chief Financial Officer
Thank you for your March 18, 2010 transmittal of the Environmental Financial Advisory
Board (EFAB) report, Commercial Insurance as a Financial Assurance Tool. Earlier, the EFAB
had provided the agency with reports on the financial test and corporate guarantee, and the use of
captive insurance. This report provides the EFAB's advice on commercial insurance as a
financial tool, including the strengths and pitfalls of insurance, the value of minimum ratings and
capitalization requirements for commercial insurers, and the feasibility and advisability of
standard policy language for the insurance used to provide financial assurance.
We recognize and appreciate the considerable amount of work the EFAB expended on
this report, and will be taking its recommendations under advisement. The Agency is currently
developing financial responsibility rules under Section 108(b) of the Comprehensive
Environmental Response, Liability, and Compensation Act (CERCLA). The Charge specifically
states that EFAB limited its evaluation to financial assurance as provided under the Resource
Conservation and Recovery Act (RCRA). However, since many of the same questions
concerning commercial insurance as a financial assurance tool will arise in developing the
CERCLA 108(b) rales, we plan to also consider these recommendations in developing these
rules.
We appreciate this valuable report from the EFAB. If you have questions, please contact
me, or your staff may contact Jim Berlow, in OSWER's Office of Resource Conservation and
Recovery, at 703-308-8404.
Internet Address (URL) • http://www.epa.gov
Recycled/Recyclable • Printed with Vegetable Oil Based Inks on 100% Postconsumer, Process Chlorine Free Recycled Paper
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