Nebraska Administrative Code › Topic - HEALTH AND HUMAN SERVICES SYSTEM › Title 180 - CONTROL OF RADIATION › Chapter 3 - LICENSING OF RADIOACTIVE MATERIAL › Appendix 3-D - CRITERIA RELATING TO USE OF FINANCIAL TESTS AND SELF-GUARANTEES FOR PROVIDING REASONABLE ASSURANCE OF FUNDS FOR DECOMMISSIONING

Current through June 17, 2024
I. INTRODUCTION
An applicant or licensee may provide reasonable assurance of the
	 availability of funds for decommissioning based on furnishing its own guarantee
	 that funds will be available for decommissioning costs and on a demonstration
	 that the company passes the financial test of Section II of this appendix. The
	 terms of this self-guarantee are in Section III of this appendix. This appendix
	 establishes criteria for passing the financial test for the selfguarantee and
	 establishes the terms for obtaining a self-guarantee.
II. FINANCIAL TEST
A. To pass the financial test a company must meet all of the criteria
	 set forth in this section. For purposes of applying the Appendix 3-D criteria,
	 tangible net worth must be calculated to exclude all intangible assets and the
	 net book value of the facility and site, and total net worth, which may include
	 intangible assets, must be calculated to exclude the net book value and
	 goodwill of the facility and site. These criteria include:
(1) Tangible net worth of at least $21 million, and total net worth at
	 least 10 times the amount of decommissioning funds being assured by a
	 self-guarantee for all decommissioning activities for which the company is
	 responsible as selfguaranteeing licensee and as parent-guarantor for the total
	 of all facilities or parts, or the current amount required if certification is
	 used.
(2) Assets located in the United States amounting to at least 90% of
	 total assets or at least 10 times the amount of decommissioning funds being
	 assured by a selfguarantee, for all decommissioning activities for which the
	 company is responsible as self-guaranteeing licensee and as parent-guarantor
	 for the total of all facilities or parts, or the current amount required if
	 certification is used.
(3) A current rating for its most recent uninsured, uncollateralized,
	 and unencumbered bond issuance of AAA, AA, or A, including adjustments of + and
	 -, as issued by Standard and Poor's, or Aaa, Aa, or A, including adjustments of
	 1, 2, or 3, as issued by Moody's.
B. To pass the financial test, a company must meet all of the following
	 additional requirements:
(1) The company must have at least one class of equity securities
	 registered under the Securities Exchange Act of 1934;
(2) The company's independent certified public accountant must have
	 compared the data used by the company in the financial test, which is derived
	 from the independently audited, year-end financial statements for the latest
	 fiscal year, with the amounts in such financial statement. The accountant must
	 evaluate the company's off-balance sheet transactions and provide an opinion on
	 whether those transactions could materially adversely affect the company's
	 ability to pay for decommissioning costs. The accountant must verify that a
	 bond rating, if used to demonstrate passage of the financial test, meets the
	 requirements of Section II, paragraph A of this appendix. In connection with
	 the auditing procedure, the licensee must inform the Department within 90 days
	 of any matters coming to the attention of the auditor that cause the auditor to
	 believe that the data specified in the financial test should be adjusted and
	 that the company no longer passes the test; and
(3) After the initial financial test, the company must annually pass
	 the test and provide documentation of its continued eligibility to use the
	 self-guarantee to the Department within 90 days after the close of each
	 succeeding fiscal year.
C. If the company no longer meets the requirements of Section II.A of
	 this appendix, the licensee must send immediate notice to the Department of its
	 intent to establish alternate financial assurance as specified in the
	 Department's regulations within 120 days of such notice.
III. COMPANY SELF-GUARANTEE
The terms of a self-guarantee which an applicant or licensee furnishes
	 must provide that:
A. The guarantee will remain in force unless the licensee sends notice
	 of cancellation by certified mail to the Department. Cancellation may not
	 occur, however during the 120 days beginning on the date of receipt of the
	 notice of cancellation by the Department, as evidenced by the return
	 receipt.
B. The licensee must provide alternative financial assurance as
	 specified in the Department's regulations within 90 days following receipt by
	 the Department of a notice of cancellation of the guarantee.
C. The guarantee and financial test provisions must remain in effect
	 until the Department has terminated the license or until another financial
	 assurance method acceptable to the Department has been put in effect by the
	 licensee.
D. The licensee will promptly forward to the Department and the
	 licensee's independent auditor all reports covering the latest fiscal year
	 filed by the licensee with the Securities and Exchange Commission according to
	 the requirements of Section 13 of the Securities and Exchange Act of
	 1934.
E.
(1) If, at any time, the licensee's most recent bond issuance ceases
	 to be rated in any category of "A-" and above by Standard and Poor's or in any
	 category of "A3" and above by Moody's, the licensee will notify the Department
	 in writing within 20 days after publication of the change by the rating
	 service.
(2) If the licensee's most recent bond issuance ceases to be rated in
	 any category of A or above by both Standard and Poor's and Moody's, the
	 licensee no longer meets the requirements of Section II.A of this
	 appendix.
F. The applicant or licensee must provide to the Department a written
	 guarantee, a written commitment by a corporate officer, which states that the
	 licensee will fund and carry out the required decommissioning activities or,
	 upon issuance of an order by the Department, the licensee will fund the standby
	 trust in the amount guaranteed by the self-guarantee agreement.
G. (1) A standby trust to protect public health and safety and the
	 environment must be established for decommissioning costs before the
	 self-guarantee agreement is submitted.
(2) The trustee and trust must be acceptable to the Department. An
	 acceptable trustee includes an appropriate State or Federal Government agency
	 or an entity which has the authority to act as a trustee and whose trust
	 operations are regulated and examined by a Federal or State agency. The
	 Department has the right to change the trustee. An acceptable trust will meet
	 the regulatory criteria established in these regulations that govern the
	 issuance of the license for which the guarantor has accepted the obligation to
	 pay for decommissioning costs.
H. The guarantor must agree that if the guarantor admits in writing its
	 inability to pay its debts generally, or makes a general assignment for the
	 benefit of creditors, or any proceeding is instituted by or against the
	 guarantor seeking to adjudicate it as bankrupt or insolvent, or seeking
	 dissolution, liquidation, winding-up, reorganization, arrangement, adjustment,
	 protection, relief or composition of it or its debts under any law relating to
	 bankruptcy, insolvency, or reorganization or relief of debtors, or seeking the
	 entry of an order for relief or the appointment of a receiver, trustee,
	 custodian, or other similar official for the guarantor or for any substantial
	 part of its property, or the guarantor takes any action to authorize or effect
	 any of the actions stated in this paragraph, then the Department may:
(1) Declare that the financial assurance guaranteed by the
	 self-guarantee agreement is immediately due and payable to the standby trust
	 set up to protect the public health and safety and the environment, without
	 diligence, presentment, demand, protest or any other notice of any kind, all of
	 which are expressly waived by guarantor; and
(2) Exercise any and all of its other rights under applicable
	 law.
I. The guarantor must notify the Department, in writing, immediately
	 following the occurrence of any event listed in paragraph H of this appendix,
	 and must include a description of the event, including major creditors, the
	 amounts involved, and the actions taken to assure that the amount of funds
	 guaranteed by the self-guarantee agreement for decommissioning will be
	 transferred to the standby trust as soon as possible.