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54 FR 47077-47082 Thursday, Nov. 9, 1989 Underground Storage Tanks Containing Petroleum; Financial Responsibility Requirements

47077-47082 Federal Register / Vol. 54, No. 216 / Thursday, November 9, 1989 / Rules and Regulations

ENVIROMENTAL PROTECTION AGENCY

40 CFR Part 280

[FRL-3677-4]

Underground Storage Tanks Containing Petroleum; Financial Responsibility Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.


SUMMARY:

EPA is today publishing an interim final rule amending the financial responsibility requirements for underground storage tanks containing petroleum which appeared in the Federal Register on October 26, 1988 (53 FR 43322). Specifically, EPA is interpreting the required language of endorsements to existing insurance policies under 40 CFR 280.97(b)(1) and certificates of insurance under 40 CFR 280.97(b)(2). The provisions interpreted and amended include the requirement that all endorsements and certificates include a six-month extended reporting period for claims-made policies and that cancellations or terminations of insurance by insurers will be effective 60 days after written notice of such termination is received by the insured. The amendments published today will bring the financial responsibility requirements into greater conformity with insurance industry practices concerning cancellation and extended reporting and thus avoid possible impacts on the availability and affordability of such insurance.

DATES:

The amendments to 40 CFR part 280 contained in this rulemaking published today were effective on October 26, 1989. EPA will accept comments on today's rulemaking that are submitted on or before December 11, 1989.

ADDRESSES:

Comments may be mailed to the Docket Clerk (Docket No. UST-3), Office of Underground Storage Tanks (WH-562A). U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 20460. Comments received by EPA, and all references used in this document, may be inspected in the public docket, located in Room LG-100, U.S. Environmental Protection Agency, 401 M Street SW., Washington, DC 20460, from 9:00 a.m. to 4:00 p.m., Monday through Friday, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: The RCRA/Superfund Hotline at (800) 424-9346 (toll free) or (202) 382-3000 in Washington, DC.

SUPPLEMENTARY INFORMATION: On October 26, 1988, EPA promulgated financial responsibility requirements applicable to owners and operators of underground storage tanks containing petroleum (53 FR 43322). The final rules permitted the owner or operator of a petroleum underground storage tank to satisfy the requirements by obtaining liability insurance from a qualified insurer or risk retention group.

Section 280.97 of the rules specified certain coverage terms that must be included in any new insurance policy or in any endorsement to an existing insurance policy. Except for limited opportunities to supply information regarding the parties to the contract, addresses, types of tanks, the scope of coverage, and so forth, the insurer and insured are not allowed to vary the language of the policy or the endorsement. Language in the endorsement and certificate of insurance found in § 280.97(b) require that the insurer attest to the fact that the language of the endorsement and certificate of insurance is identical to the form specified in the regulations. The Agency believes that the requirement of uniform language would ensure the availability of insurance to cover corrective action or third party damage payments.

Through meetings with insurers and segments of the regulated community, EPA has subsequently learned of the prevalence of certain interpretations of the required language of the certificate of insurance and endorsement not intended by EPA. EPA has received information indicating that insurers are reluctant to issue policies or to enter the underground storage tank insurance market so long as these interpretations are not refuted by EPA. Thus EPA is today setting forth its intended interpretations of the required language of the certificate of insurance and the endorsement as well as amending the certificate and endorsement to require that insurers use alternative language that more explicitly reflects the intended meaning of these provisions. EPA is not changing the requirements that the language of all endorsements and certificates of insurance be identical to that language found in the regulations. Instead, EPA is changing the exact nature of that mandatory identical language in accordance with the wishes of insurers and insureds.

EPA is not soliciting comments prior to the effective date of today's rulemaking. Under section 3(b) of the Administrative Procedures Act, 5 U.S.C. 553(b), the Agency may for good cause or where the rule is interpretative, omit notice and comment procedures. The Agency believes that it has good cause to omit notice and comment prior to the effective date of today's technical amendments. First with the exception of changes to §§ 280.97(b)(1)(d), 280.97(b)(2)(d) and 280.105(a)(2), the Agency believes that notice and comment are unnecessary due to the non-substantive nature of the changes. These changes do not impose new substantive standards upon the regulated community, but rather require only that insurers substitute in future endorsements and certificates of insurance language that more carefully reflects the intended meaning of the currently required provisions.

Second, the Agency believes that it is in the public interest to omit notice and comment procedures with respect to all of the regulatory amendments made today, including those to §§ 280.97(b)(1)(d), 280.97(b)(2)(d) and 280.97(b)(2)(e), which govern termination due to non-payment of premium. The Agency has received information to the effect that these amendments may increase the availability of insurance policies to owners and operators of 100-999 tanks required to comply with the financial responsibility rule by October 26, 1989, as required by 40 CFR 280.91(b). At the same time, the Agency has received information that greater availability of insurance may ease the burden of compliance with the financial responsibility requirements among those owners and operators subject to the October 26, 1989, deadline. Finally, the information referred to was received too late to prepare and publish regulatory changes in response to this information before today. Thus the Agency has concluded that, due to the delays involved in such procedures, providing notice and comment on these amendments is contrary to the public interest. The delays consequent to soliciting and responding to public comments are likely to prevent these amendments from becoming effective in time for insurers entering the underground storage tank insurance market because of these amendments to prepare policies and for owners and operators to obtain these new policies by the October 26, 1989, deadline.

However, the Agency is soliciting comment on today's regulatory amendments. Comments may be submitted on or before December 11, 1989. Comments will be considered by the Agency and, if necessary, the Agency will issue a final rule changing today's amendments to respond to these comments.

The amendments to 40 CFR part 280 contained in today's rulemaking and effective today apply only to those insurance policies, endorsements and certificates of insurance that are issued or renewed after today's date. Thus policies, endorsements and certificates of insurance that were issued prior to today's date and in compliance with 40 CFR part 280 as written prior to today's rule will continue to be valid until such time as they are canceled or terminated, or must be renewed.

I. Authority

These regulations are issued under the authority of sections 2002, 9001, 9002, 9003, 9004, 9005, 9006, 9007, and 9009 of the Solid Waste Disposal Act. as amended. The principal amendments to this Act have been under the Resource Conservation and Recovery Act of 1976, the Hazardous and Solid Waste Amendments of 1984 (Pub. L 98-616) and the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499) (42 U.S.C. 6921, 6991, 6991(a), 6991(b) 6991(c), 6991(d), 6991(e), 6991(f), and 6991(h)).

II. Background

A. Six-month Extended Reporting Requirement for Claims-Made Policies

Mandatory language in the endorsement and certificate of insurance requires that a claims-made insurance contract cover claims for any occurrence that commenced during the term of the policy and that is discovered and reported to the insurer within six months of the effective date of the cancellation or other termination of the policy. The language of 40 CFR 280.97(b), Endorsement paragraph 2.e; § 280.97(b), Certification paragraph 2.e. reads: "The insurance covers claims for any occurrence that commenced during the term of the policy that is discovered and reported to the ['Insurer' or 'Group'] within six months of the effective date of the cancellation or termination of the policy.]" This provision was meant to address concerns that a claims-made policy might leave a gap in coverage, if, for example, a claim is reported after the expiration of a policy for a release that began prior to the policy expiration date. Such claims might not be covered by the usual claims-made policy that is issued in the insurance industry. This is discussed in the preamble to the October 26, 1988, final rule. 53 FR 43350-51.

Through discussions with representatives of the insurance industry, however, EPA has learned that the industry generally interprets EPA's extended reporting period provision to require that every claims-made policy issued, regardless of what retroactive date is incorporated, contain an extended reporting period. Because charging a fee for the extended reporting period is a widespread practice within the industry, this interpretation has caused insurance companies to routinely request payment for the extended reporting period at the start of the policy period. Due to a reluctance on the part of insureds to pay for this coverage at the beginning of a policy period when they expect to renew their policy or otherwise purchase a new policy with the same retroactive date as their prior policy, this interpretation is apparently impinging upon the availability of UST insurance.

As explained below, however, this prevalent interpretation of the extended reporting period is not intended by the Agency, and is in fact unnecessary to the protection of human health and the environment. EPA intends that insurers provide extended reporting period coverage only where the termination or non-renewal of the policy results in the owner or operator having no coverage for releases that occurred during the time period of the previous policy and which are reported within six months after the termination or non-renewal of that policy. For discussion purposes, EPA has labeled this predicament as a "gap" in coverage. Because a "gap" in coverage will not always exist at the termination or other non-renewal of every insurance policy, interpreting the EPA regulation to require every insurance policy to have an extended reporting period results in the provision of unnecessary coverage and, considering the industry's standard fee practice, an unnecessary restraint upon the availability of UST insurance. For instance, a "gap" in coverage will not normally occur where an existing policy is renewed. According to standard insurance industry practice, a renewed policy incorporates the retroactive date of the previous policy. Thus should the insured who renews his policy report a release that occurred during the time period of the previous policy, the release would be covered by the renewed policy. It may also be true that no "gap" will exist even when the insured purchases a new policy from a different insurance company. Many companies will incorporate the retroactive date of the insured's previous policy (as well as the same type of insurance coverage as provided by the previous policy) for releases that are reported during the time period of the new policy but which occurred during the time of the previous policy. Here, as in the case of renewed policies, the requirement to obtain an extended reporting period at the end of the first policy period would not be of any benefit to human health and the environment since the new policy provides the same coverage as that provided by the extended reporting period.

EPA believes that there are only two situations where the termination of a policy results in a "gap" in coverage and thus only two situations where the insured whose policy is terminated must obtain extended reporting period coverage. The first situation occurs where the insured renews his existing policy or purchases a new policy and the renewed or new policy contains a retroactive date subsequent to the retroactive date of the insured's previous insurance policy. The second situation occurs where the policy is terminated or is otherwise not renewed and the insured elects a financial assurance mechanism other than insurance (such as a guarantee, surety bond, etc.) as a replacement. EPA is today promulgating revised language to clarify EPA's intended interpretation of paragraph 2.e. of the Endorsement contained in § 280.97(b)(1) and of paragraph 2.e. of the Certification contained in § 280.97(b)(2).

In addition, EPA is also revising the language of these two paragraphs to state explicitly what it had previously believed to be self-evident: that claims reported to the insurer during the six-month reporting period are subject to all of the terms, limits and conditions that existed during the policy period that it modifies. Because the Agency has received questions on this matter since promulgating the October 26, 1988 rule, the Agency decided to add clarifying language on this point in addition to the more important changes to § 280.97(b) described above.

The language of paragraph 2.e. of the Endorsement and Certification in 280.97(b) now reads:

The insurance covers claims otherwise covered by the policy that are reported to the ["Insurer" or "Group"] within six months of the effective date of cancellation or non-renewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability. and exclusions of the policy.

Because EPA expects that these regulatory changes will result in owners and operators purchasing extended reporting period coverage, where needed, at the end, rather than the beginning of their policy period, EPA wishes to clarify exactly when such coverage must be obtained for compliance purposes. Where extended reporting period coverage is necessary, such coverage must be obtained before the time and date of the expiration of the prior policy.

A related issue raised by insurers concerns the possibility of double coverage through an expansive interpretation of what constitutes "termination" of the claims-made policy under § 280.97(b)(1) Endorsement paragraph (e), and § 280.97(b)(2) Certification paragraph (e),--the act that triggers the six-month extended reporting requirement discussed above. For example, under some state insurance laws, the mere addition or deletion of retail outlets from a company's insurance policy may constitute a "termination" of the policy. Such a change would not constitute a "termination" under EPA's interpretation of that term. EPA interprets "termination" to encompass only those changes that could result in a gap in coverage as where the insured has not obtained substitute coverage or has obtained substitute coverage with a different retroactive date than the retroactive date of the original policy.

Finally, the Agency wishes to clarify its position with respect to the current insurance industry practice of charging insureds for the six month extended reporting period. EPA's regulations require that owners and operators obtain a six-month extended reporting period whenever a gap in their insurance coverage may exist. EPA's regulations go to owners and operators and not to those providing the insurance required under the rules. Therefore, whether insurers choose to provide the extended reporting period to insureds only for an additional cost is of no concern to the Agency with respect to compliance with the financial responsibility requirements. Insurers are free to provide the extended reporting period only for an additional cost; however, insureds who fail to obtain such coverage due to non-payment of this added cost will be out of compliance with EPA's financial responsibility requirements.

B. Sixty Days Required Coverage Following Cancellation or Termination by Insurer

Mandatory language in the endorsement and certificate of insurance requires that cancellation or any other termination of the insurance by the insurer will be effective only upon written notice and only after expiration of 60 days after written notice is received by the insured. 40 CFR 280.97(b)(1) Endorsement paragraph d. and 280.97(b)(2) Certification paragraph d. A separate provision of the regulations restates this requirement for cancellation of insurance. 40 CFR 280.105(a)(2). Additionally, the insurer must provide a six-month extended reporting period following cancellation. These provisions were meant to ensure that an owner or operator whose insurance was cancelled or terminated would have sufficient time to obtain an alternative assurance mechanism thereby avoiding any unacceptable gaps in coverage. These provisions did not distinguish between the effective date of cancellation where the cancellation was due to non-payment of premium or misrepresentation as opposed to cancellation for any other cause.

Subsequent discussions with insurers and segments of the regulated community that are seeking insurance have persuaded the Agency that the provision for extended coverage for sixty days following cancellation of coverage for non-payment of premium or misrepresentation is reducing the availability of insurance. The Agency has received indications that some insurers have decided against entering the market because of concerns that they might be forced to pay claims without ever having received any premiums or where the insured has made a misrepresentation. The Agency has also been informed that other insurers have increased premiums to protect against situations in which the insurer would have to pay for losses for which it has never collected a premium.

EPA is today amending the language of § 280.97(b)(1) Endorsement paragraph d, § 280.97(b)(2) Certification paragraph d and § 280.105(a)(2) to allow an insurer to terminate an insurance contract for non-payment of premium or misrepresentation by the insured after a 10 day notice period. EPA does not intend for this shortening of the coverage period from 60 to 10 days to apply to termination for any reason other than non-payment of premium or misrepresentation. The Agency is aware that some state insurance laws mandate a longer notice period following cancellation. In order to accommodate these state-specific situations, the amended language of § 280.97(b)(1) Endorsement paragraph d, § 280.97(b)(2) Certification paragraph d and § 280.105(a)(2) specifies that the mandatory coverage period following termination for non-payment of premium or misrepresentation shall be a "minimum of 10 days." The insurer is still bound to provide the owner or operator with written notice of cancellation with the 10 day period beginning upon receipt of notice by the owner or operator.

When the final rule was promulgated, the Agency believed that a 60-day cancellation coverage period was necessary to allow the insured owner or operator to obtain an alternative assurance mechanism, and thus avoid any unacceptable gap in coverage. The Agency thought that this requirement would not have a serious impact on insurance providers since insurers could protect themselves by establishing an appropriate schedule of premium payment. For example, insurers could require payment 90 days before the expiration date of coverage for maintenance or renewal of the policy. The insurer could then terminate the policy with 60 days notice if an insured does not meet the schedule of payment within 30 days of the premium due date.

Subsequently, the Agency has come to a better understanding of the economic impact on insurers of not allowing more than a 10-day cancellation period for non-payment of premium or misrepresentation. Insurers currently covering USTs have found restructuring premium payment schedules to be costly and impractical, primarily because the practice is a major departure from existing industry practices. An important consequence of the 60-day cancellation requirement for non-payment of premium or misrepresentation has been the deterrence of new insurers from entering the UST market.

Although the Agency continues to be concerned about the adequacy of the 10-day cancellation in terms of finding alternative financial assurance after cancellation for non-payment, EPA does not want this requirement to have an impact on the availability and affordability of UST insurance. The Agency believes that today's amendment will bring the financial responsibility requirements into greater conformity with insurance industry practices concerning cancellation and thus avoid possible impacts upon the availability and affordability of such insurance. Generally, EPA believes that the insurance industry should be paid for bearing the risks of corrective action and third-party liability costs. In the cases of non-payment, the industry is unfairly undertaking risks without rightful compensation. For those insurers resisting entry into the market, the threat of insuring risks without ever receiving any premium is apparently a serious concern. Thus, today's change should remove a serious obstacle to the supply of insurance to owners and operators of underground storage tanks.

The Agency is not amending the requirement for a six-month extended reporting period following cancellation for non-payment of premium or misrepresentation. As noted in the previous section, the Agency believes that such a reporting period must be mandatory for all claims-made insurance contracts used to demonstrate financial assurance, regardless of the reason for termination. The six-month extended reporting period is essential to avoiding gaps in coverage that could threaten human health and environment, especially in cases where the owner or operator may have as few as 10 days upon receipt of notice of cancellation to obtain substitute coverage. The distinction between the two provisions, extended reporting period and the effective date of cancellation, is that even if a policy is canceled for non-payment of premium, the extended reporting period merely extends the time during which an insured may report occurrences covered by the policy for which he or she has not paid. Thus the extended reporting provision does not provide the insured with a benefit for which he or she has not paid. In contrast, any delay in the effective date of a policy cancellation or termination due to regulatory requirements provides insureds who failed to pay their premiums coverage for which they have not paid.

C. Other Regulatory Changes

Today's action makes three other regulatory changes in the requirements for the language in the endorsement and certificate of insurance. As noted above, EPA is not changing the requirement that the language of all endorsements and certificates of insurance be identical to that language found in the regulations. Instead, EPA is changing the mandatory language itself to meet the needs of insurers and insureds.

While insurance policies issued in connection with the financial responsibility requirements must be amended by attaching the endorsement or evidenced by the certificate of insurance, the endorsement and certificate do not stand apart from the insurance policy. Some insurers were concerned that the existing mandatory language did not allow the parties to make the relationship between the scope of the policy and the requirements of the certificate and endorsement clear. The first two technical amendments made today are intended to make that connection.

First, the phrase "in accordance with the subject to the limits of liability, exclusions, conditions, and other terms, of the policy" is being added to the first paragraph of both the endorsement and certification after the explanation of what the endorsement and certificate provide to clarify that these instruments do not narrow or broaden the scope of coverage provided in the policy itself. This correction also brings the required regulatory language into conformity with standard UST insurance industry practices. The amendment should reduce any confusion on the part of insureds concerning the coverage they are purchasing and also minimize insurers' concerns about potential conflicts with insureds over the scope of coverage. The second phrase, "which are subject to a separate limit under the policy," is inserted in the language of the certificate and endorsement to modify the phrase "exclusive of legal defense costs" in paragraph 1 of the endorsement and certification where the limits of liability found in the policy are discussed. While the language of the endorsement and the certification prevent the insurer from describing any existing limits upon legal defense costs, EPA did not intend to indicate that such limitations are not allowable or that such limitations that may be present in the policy are not valid. The Agency does not want the mandatory language concerning legal defense costs to interfere with the parties' understanding of the policy itself. Third, the phrase "after the policy retroactive date" is being added to specify the beginning of the period when occurrences are covered under the policy. It is common for insurers to establish such a date in a policy and use that date to determine when to divide coverage between policies when a second policy is coming into effect. Each of the above phrases being added conform to standard UST insurance industry usage and are not intended to change the requirements for the certificate and endorsement. These technical changes are effective immediately.

List of Subjects in 40 CFR Part 280

Administrative practice and procedure, Environmental protection, Hazardous materials insurance, Surety bonds, Underground storage tanks.

Dated: October 26, 1989.

Jonathan Z. Cannon,
Acting Assistant Administrator, Office of Solid Waste and Emergency Response.

Accordingly, title 40 of the Code of Federal Regulations is amended as set forth below.

PART 280--TECHNICAL STANDARDS AND CORRECTIVE ACTION REQUIREMENTS FOR OWNERS AND OPERATORS OF UNDERGROUND STORAGE TANKS

1. The authority citation for part 280 continues to read as follows:

Authority: 42 U.S.C. 6912, 6991, 6991(a), 6991(b), 6991(c), 6991(d), 6991(e), 6991(f), and 6991(h).

2. Section 280.92 is amended to add the following new definition:

§ 280.92 Definition of terms.

* * * * *

(o) Termination under § 280.97(b)(1) and § 280.97(b)(2) means only those changes that could result in a gap in coverage as where the insured has not obtained substitute coverage or has obtained substitute coverage with a different retroactive date than the retroactive date of the original policy.

§ 280.97 [Amended]
3. In § 280.97(b)(1), under "Endorsement:", the first paragraph of 1, is amended by removing " 'accidental releases'; if" and adding " 'accidental release'; in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; if".
4. In § 280.97(b)(1), under "Endorsement:", in the second paragraph of 1., after "exclusive of legal defense costs." insert ", which are subject to a separate limit under the policy."
5. In § 280.97(b)(l), under "Endorsement:", in paragraph 2.d., after "['Insurer' or 'Group']" insert ", except for non-payment of premium or misrepresentation by the insured,"
6. In § 280.97(b)(1), under "Endorsement:", in paragraph 2.d., after "received by the insured." insert "Cancellation for non-payment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of 10 days after a copy of such written notice is received by the insured."
7. In § 280.97(b)(1), under "Endorsement:", the first paragraph of 2.e., is revised to read as follows:

* * * * *
2.
e. The insurance covers claims otherwise covered by the policy that are reported to the ["Insurer" or "Group"] within six months of the effective date of cancellation or non-renewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.]

* * * * *
8. In § 280.97(b)(2), under "Certification:", the first paragraph of 1., removing " 'accidental releases'; if" and adding " 'accidental releases'; in accordance with and subject to the limits of liability, exclusions, conditions, and other terms of the policy; if",
9. In § 280.97(b)(2), under "Certification:", in the second paragraph of 1., after "exclusive of legal defense costs." insert ", which are subject to a separate limit under the policy."
10. In § 290.97(b)(2), under "Certification:", in paragraph 2.d., "['Insurer' or 'Group']" insert ", except for non-payment of premium or misrepresentation by the insured,".
11. In § 280.97(b)(2), under "Certification:", in paragraph 2.d., after "received by the insured." insert "Cancellation for non-payment of premium or misrepresentation by the insured will be effective only upon written notice and only after expiration of a minimum of 10 days after a copy of such written notice is received by the insured."
12. In § 280.97(b)(2), under "Certification:", the first paragraph of 2.e., is revised to read as follows:

* * * * *

2 * * * * *
e. The Insurance covers claims otherwise covered by the policy that are reported to the ["Insurer" or "Group"] within six months of the effective date of cancellation or non-renewal of the policy except where the new or renewed policy has the same retroactive date or a retroactive date earlier than that of the prior policy, and which arise out of any covered occurrence that commenced after the policy retroactive date, if applicable, and prior to such policy renewal or termination date. Claims reported during such extended reporting period are subject to the terms, conditions, limits, including limits of liability, and exclusions of the policy.]

* * * * *

13. Section 280.105 is amended by revising paragraph (a)(2) to read as follows:

§ 280.105 Cancellation or nonrenewal by a provider of financial assurance.

* * * * *

(a) * * *
(2) Termination of insurance or risk retention group coverage, except for non-payment or misrepresentation by the insured, or state-funded assurance may not occur until 60 days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt. Termination for non-payment of premium or misrepresentation by the insured may not occur until a minimum of 10 days after the date on which the owner or operator receives the notice of termination, as evidenced by the return receipt.

* * * * *

[FR Doc. 89-26104 Filed 11-8-89; 8:45 am]

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