1. (a) Owners of UST facilities shall maintain financial responsibility for costs associated with the cleanup of releases from UST systems, the implementation of corrective measures, and compensation for third party damages in an amount equal to or greater than:

   1. (1) $1,000,000 per occurrence; and

   2. (2) An annual aggregate of:

      1. a. $1,000,000 if one to 100 UST systems are owned; or
      2. b. $2,000,000 if 101 or more UST systems are owned.
2. (b) The amount of financial responsibility required shall not limit the liability of an owner or operator for damages caused by a release.
3. (c) The requirement for financial responsibility shall be satisfied if the owner of a facility is eligible for reimbursement of costs associated with cleanup of releases from systems under RSA 146-D.

4. (d) If the requirement for financial responsibility is not satisfied as specified in (c), above, the owner shall provide financial assurance in one, or any combination, of the following formats:

   1. (1) An irrevocable letter of credit issued for a period of at least one year from an institution whose operations are regulated and examined by a federal or New Hampshire state agency;
   2. (2) An insurance policy from an unrelated third-party insurance company;
   3. (3) A surety bond issued by a surety company listed as an acceptable surety on federal bonds in Circular 570 of the U.S. Department of the Treasury;
   4. (4) A trust fund established in accordance with the laws of the state of New Hampshire; or
   5. (5) An alternate mechanism agreed to by the owner and the department that will ensure that the funds necessary to meet the remediation costs are available when they are needed.
5. (e) If using a surety bond, insurance policy, or letter of credit, the owner also shall establish a standby trust to receive the proceeds of the surety bond, insurance policy, or letter of credit.
6. (f) Each financial assurance instrument specified in (d) and (e), above, shall specifically identify the state of New Hampshire as the beneficiary.
7. (g) Funds held in trust accounts may be invested, but shall provide for the preservation of principal.
8. (h) Financial assurance documents shall be as described in 40 CFR 264.151, as applicable.
9. (i) Letters of credit shall include a provision to automatically extend the expiration date by at least one year unless the issuing institution notifies the responsible party and the department by certified mail, return receipt requested, of a decision to not extend the expiration date at least 120 days before the current expiration date.
10. (j) Insurance policies and surety bonds shall include a provision to prohibit any cancellation without prior notice of cancellation being sent to the owner and the department by certified mail, return receipt requested, at least 120 days before the effective date of cancellation.
11. (k) Within 10 days after commencement of a voluntary or involuntary bankruptcy proceeding under title 11 of the U.S. Code that names an owner as debtor, the owner shall comply with 40 CFR 280.114(a).

12. (l) An owner who obtains financial assistance by a mechanism other than that provided in (c), above, whose provider of the owner’s financial assurance files for or is named as a debtor in a bankruptcy proceeding, or has its authority to issue a guarantee, insurance policy, risk retention group coverage policy, surety bond, letter of credit, or other mechanism, as applicable, suspended or revoked, shall:

    1. (1) Be deemed to be without the requisite financial assurance;
    2. (2) Obtain alternative financial assurance as specified in this section within 30 days after receiving notice of such notification; and
    3. (3) Notify the department within 30 days of the replacement financial assurance.
13. (m) Within 30 days after receipt of notification that a state fund or other state assurance has become incapable of paying for assured corrective action or third-party compensation costs, the owner shall obtain alternative financial assurance.

14. (n) An owner shall no longer be required to maintain financial assurance under this chapter for a UST after the tank has been permanently closed if:

    1. (1) Contamination was not detected on the property on which the facility was or is located; or
    2. (2) Corrective action has been completed.

Source. (See Revision Note #1 at chapter heading for Env-Or 400) #10393, eff 9-1-13; ss by #12643, eff 10-10-18 (formerly Env-Or 404.11) (See Revision Note #2 at chapter heading for Env-Or 400)