401 KAR 35:120. Liability requirements (IS).

 

      RELATES TO: KRS 224.10, 224.40, 224.43, 224.46, 224.99, 40 C.F.R. 265.147

      STATUTORY AUTHORITY: KRS 224.46-505, 224.46-520, 224.46-530

      NECESSITY, FUNCTION, AND CONFORMITY: To implement provisions of KRS 224.46-505, 224.46-520, and 224.46-530 relative to liability requirements for hazardous waste sites or facilities qualifying for interim status. This administrative regulation is equivalent to federal standards established in 40 CFR 265.147 except for: Section 2(1)(b) of this administrative regulation, which adds a reference to applicable statutory requirements; Sections 1(7) and 2(8) of this administrative regulation, which provide an historical reference to determine prior compliance; Section 5 of this administrative regulation, which is modified to maintain consistency with KRS 224.46-520; and this administrative regulation provides state forms equivalent to federal mechanisms for financial assurance.

 

      Section 1. Coverage for Sudden Accidental Occurrences. An owner or operator of a hazardous waste treatment, storage, or disposal facility, or a group of such facilities, shall demonstrate financial responsibility for bodily injury and property damage to third parties caused by sudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator shall have and maintain liability coverage for sudden accidental occurrences in the amount of at least $1,000,000 per occurrence with an annual aggregate of at least $2,000,000, exclusive of legal defense costs. This liability coverage may be demonstrated as specified in subsections (1) to (6) of this section.

      (1) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this section.

      (a) Each insurance policy shall be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The Hazardous Waste Facility Liability Endorsement shall be executed on DEP Form 6035K incorporated by reference in Section 4 of 401 KAR 34:080. The Certificate of Liability Insurance shall be on DEP Form 6035L incorporated by reference in Section 4 of 401 KAR 34:080. The owner or operator shall submit an originally signed duplicate of the endorsement or the certificate of insurance to the cabinet. If requested by the cabinet, the owner or operator shall provide an originally signed duplicate of the insurance policy.

      (b) Each primary insurance policy shall be issued by an insurer which, at a minimum, is authorized to transact primary insurance in Kentucky except as KRS 304.11-030 provides otherwise. Each excess insurance policy shall be issued by an insurer which, at a minimum, is licensed to provide insurance as an excess or surplus lines insurer in one (1) state.

      (2) An owner or operator may meet the requirements of this administrative regulation by passing a financial test or using the corporate guarantee for liability coverage as specified in Sections 6 and 7 of this administrative regulation.

      (3) An owner or operator may meet the requirements of this section by obtaining a letter of credit for liability coverage as specified in Section 8 of this administrative regulation.

      (4) An owner or operator may meet the requirements of this section by obtaining a surety bond for liability coverage as specified in Section 9 of this administrative regulation.

      (5) An owner or operator may meet the requirements of this section by obtaining a trust fund for liability coverage as specified in Section 10 of this administrative regulation.

      (6) An owner or operator may demonstrate the required liability coverage through use of combinations of the financial test, insurance, the corporate guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated shall total at least the minimum amounts required by this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurances under this subsection, the owner or operator shall specify at least one (1) such assurance as "primary" coverage and shall specify other assurance as "excess" coverage.

      (7) An owner or operator shall notify the cabinet in writing within thirty (30) days whenever:

      (a) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized by subsections (1) to (6) of this section;

      (b) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under subsections (1) through (6) of this section; or

      (c) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under subsections (1) to (6) of this section.

      (8) Notwithstanding any other provisions of this chapter, an owner or operator using liability insurance to satisfy the requirements of this administrative regulation may use, until October 16, 1982, a hazardous waste facility endorsement or certificate of liability insurance that does not certify that the insurer is licensed to transact the business of insurance or eligible as an excess or surplus lines insurer, in one (1) or more states.

 

      Section 2. Coverage for Nonsudden Accidental Occurrences. An owner or operator of a surface impoundment, landfill, facility for land disposal as specified in KRS 224.01-010, or land treatment facility which is used to manage hazardous waste, or a group of such facilities, shall demonstrate financial responsibility for bodily injury and property damage to third parties caused by nonsudden accidental occurrences arising from operations of the facility or group of facilities. The owner or operator shall have and maintain additional liability coverage for nonsudden accidental occurrences in the amount of at least $3,000,000 per occurrence with an annual aggregate of at least $6,000,000, exclusive of legal defense costs. An owner or operator who is required to meet the requirements of this section may combine the required per-occurrence coverage levels for sudden and nonsudden accidental occurrences into a single per-occurrence level, and combine the required annual aggregate coverage levels for sudden and nonsudden accidental occurrences into a single annual aggregate level. Owners or operators who combine coverage levels for sudden and nonsudden accidental occurrences shall maintain liability coverage in the amount of at least $4 million per occurrence and $8 million annual aggregate. This liability coverage may be demonstrated as specified in subsections (1) to (6) of this section:

      (1) An owner or operator may demonstrate the required liability coverage by having liability insurance as specified in this section.

      (a) Each insurance policy shall be amended by attachment of the Hazardous Waste Facility Liability Endorsement or evidenced by a Certificate of Liability Insurance. The Hazardous Waste Facility Liability Endorsement shall be executed on DEP Form 6035K incorporated by reference in Section 4 of 401 KAR 34:080. The Certificate of Liability Insurance shall be executed on DEP 6035L incorporated by reference in Section 4 of 401 KAR 34:080. The owner or operator shall submit an originally signed duplicate of the endorsement or the certificate of insurance to the cabinet. If requested by the cabinet, the owner or operator shall provide an originally signed duplicate of the insurance policy.

      (b) Each primary insurance policy shall be issued by an insurer which, at a minimum is authorized to transact the business of primary insurance in Kentucky except as KRS 304.11-030 provides otherwise. Each excess insurance policy shall be issued by an insurer which, at a minimum is authorized to provide insurance as an excess or surplus lines insurer in one (1) state.

      (2) An owner or operator shall notify the cabinet in writing within thirty (30) days whenever:

      (a) A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized by subsections (1) to (6) of this section;

      (b) A Certification of Valid Claim for bodily injury or property damages caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is entered between the owner or operator and third-party claimant for liability coverage under subsections (1) through (6) of this section; or

      (c) A final court order establishing a judgment for bodily injury or property damage caused by a sudden or nonsudden accidental occurrence arising from the operation of a hazardous waste treatment, storage, or disposal facility is issued against the owner or operator or an instrument that is providing financial assurance for liability coverage under subsections (1) to (6) of this section.

      (3) An owner or operator may meet the requirements of this administrative regulation by passing a financial test, or using the corporate guarantee for liability coverage as specified in Sections 6 and 7 of this administrative regulation.

      (4) An owner or operator may meet the requirements of this section by obtaining a letter of credit for liability coverage as specified in Section 8 of this administrative regulation.

      (5) An owner or operator may meet the requirements of this section by obtaining a surety bond for liability coverage as specified in Section 9 of this administrative regulation.

      (6) An owner or operator may meet the requirements of this section by obtaining a trust fund for liability coverage as specified in Section 10 of this administrative regulation.

      (7) An owner or operator may demonstrate the required liability coverage through use of combinations of the financial test, insurance, the corporate guarantee, letter of credit, surety bond, and trust fund, except that the owner or operator may not combine a financial test covering part of the liability coverage requirement with a guarantee unless the financial statement of the owner or operator is not consolidated with the financial statement of the guarantor. The amounts of coverage demonstrated shall total at least the minimum amounts required by this section. If the owner or operator demonstrates the required coverage through the use of a combination of financial assurance under this section, the owner or operator shall specify at least one (1) such assurance as "primary" coverage and shall specify other assurance as "excess" coverage.

      (8) The required liability coverage for nonsudden accidental occurrences shall be demonstrated by the dates listed below. The total sales or revenues of the owner or operator in all lines of business, in the fiscal year preceding October 8, 1982, shall determine which of the dates apply. If the owner and operator of a facility are two (2) different parties, or if there is more than one (1) owner or operator, the sales or revenues of the owner or operator with the largest sales or revenues shall determine the date by which the coverage shall be demonstrated. The dates are as follows:

      (a) For an owner or operator with sales or revenues totaling $10,000,000 or more, February 24, 1983.

      (b) For an owner or operator with sales or revenues greater than $5,000,000 but less than $10,000,000, February 24, 1984.

      (c) For all other owners or operators, February 24, 1985.

      (9) Notwithstanding any other provisions of this chapter, an owner or operator using liability insurance to satisfy the requirements of this administrative regulation may use, until October 16, 1982, a hazardous waste facility endorsement or certificate of liability insurance that does not certify that the insurer is licensed to transact the business of insurance or eligible as an excess or surplus lines insurer, in one (1) or more states.

 

      Section 3. Adjustments by the Cabinet. If the cabinet determines that the levels of financial responsibility required by Sections 1 and 2 of this administrative regulation are not consistent with the degree and duration of risks associated with treatment, storage, or disposal at any facility or group of facilities, the cabinet may increase the level of financial responsibility required under Sections 1 and 2 of this administrative regulation as may be necessary to protect human health and the environment. This adjusted level shall be based on the cabinet's assessment of the degree and duration of risks associated with the ownership or operation of each facility or group of facilities. In addition, if the cabinet determines that there is a significant risk to human health and the environment from nonsudden accidental occurrences resulting from the operations of a facility that is not a surface impoundment, landfill, or land treatment facility, the cabinet may require that the owner or operator of the facility comply with Section 2 of this administrative regulation. An owner or operator shall furnish to the cabinet, within a reasonable time, any information which the cabinet requests to determine whether cause exists for such adjustments of the level or type of coverage. Any adjustment of the level of required coverage for a facility that has a permit shall be treated as a permit modification under Section 2(1)(e) of 401 KAR 38:040 and subject to the procedures of Section 2 of 401 KAR 38:050. Notwithstanding any other provision, the cabinet may hold a public hearing at its discretion or whenever the cabinet finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to adjust the level or type of required coverage.

 

      Section 4. Request for a Variance. If an owner or operator can demonstrate to the satisfaction of the cabinet that the increased level of financial responsibility required by Section 1 or 2 of this administrative regulation is not consistent with the degree and duration of risks associated with the treatment, storage, or disposal at each facility or group of facilities, the owner or operator may obtain a variance from the cabinet. The request for a variance shall be submitted to the cabinet in writing. The cabinet shall not grant any requests for a variance which seek to decrease the level of financial responsibility below the minimums required by KRS 224.46-520(3)(c). If granted, the variance shall take the form of an adjusted level of required liability coverage, such level to be based on the cabinet's assessment of the degree and duration of risks associated with the ownership or operation of each facility or group of facilities. The cabinet may require an owner or operator who requests a variance to provide such technical and engineering information as is deemed necessary by the cabinet to determine a level of financial responsibility other than that required by Sections 1 and 2 of this administrative regulation. Any request for a variance for a permitted facility shall be treated as a request for a permit modification under Section 2 of 401 KAR 38:040 and subject to the procedures of Section 2 of 401 KAR 38:050. Notwithstanding any other provision, the cabinet may hold a public hearing at its discretion or whenever the cabinet finds, on the basis of requests for a public hearing, a significant degree of public interest in a tentative decision to grant a variance.

 

      Section 5. Period of Coverage. An owner or operator shall continuously provide liability coverage for a facility as required by this administrative regulation until certification of termination pursuant to the requirements of KRS 224.46-520.

 

      Section 6. Liability Self-insurance. (1) An owner or operator may satisfy the requirements of this administrative regulation by demonstrating that he passes a financial test as specified in this section. To pass this test the owner or operator shall demonstrate that the level of self-insurance does not exceed ten (10) percent of equity and shall meet the criteria of either paragraph (a) or (b) of this subsection:

      (a) The owner or operator shall have:

      1. Net working capital and tangible net worth each at least six (6) times the amount of liability coverage to be demonstrated by this test; and

      2. Tangible net worth of at least $10 million; and

      3. Assets in the United States amounting to either, at least, ninety (90) percent of his total assets or, at least six (6) times the amount of liability coverage to be demonstrated by this test.

      (b) The owner or operator shall have:

      1. A current rating for his most recent bond issuance of AAA, AA, A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as issued by Moody's; and

      2. Tangible net worth of at least $10 million; and

      3. Tangible net worth at least six (6) times the amount of the liability coverage to be demonstrated by this test; and

      4. Assets located in the United States amounting to either, at least, ninety (90) percent of his total assets or, at least, six (6) times the amount of the liability coverage to be demonstrated by this test.

      (2) The phrase "amount of liability coverage" as used in subsection (1) of this section refers to the annual aggregate amounts for which coverage is required under Sections 1 and 2 of this administrative regulation.

      (3) To demonstrate that he meets this test, the owner or operator shall submit the following three (3) items to the cabinet:

      (a) A letter signed by the owner's or operator's chief financial officer and executed on the form entitled Letter from Chief Financial Officer to Demonstrate Liability Coverage or to Demonstrate Liability Coverage and Assurance of Closure or Postclosure Care, DEP Form 6035G, incorporated by reference in Section 4 of 401 KAR 34:080. If an owner or operator is using the financial test to demonstrate both liability coverage and assurance for closure or postclosure care (as specified by Section 8 of 401 KAR 34:090, Section 8 of 401 KAR 34:100, Section 7 of 401 KAR 35:090, and Section 7 of 401 KAR 35:100), he shall submit the letter on the form entitled Letter from Chief Financial Officer to Demonstrate Liability Coverage or to Demonstrate Liability Coverage and Assurance of Closure or Postclosure Care, DEP Form 6035G, incorporated by reference in Section 4 of 401 KAR 34:080, to cover both forms for financial responsibility a separate letter is not required;

      (b) A copy of the independent certified public accountant's report on examination of the owner's or operator's financial statements for the latest completed fiscal year; and

      (c) A special report from the owner's or operator's independent certified public accountant to the owner or operator stating that:

      1. He has compared the data which the letter from the chief financial officer specifies as having been derived from the independently audited, year-end financial statements for the latest fiscal year with the amounts in such financial statements; and

      2. In connection with that procedure, no matters came to his attention which caused him to believe that the specified data should be adjusted.

      (d) The owner or operator may obtain a one (1) time extension of the time allowed for submission of the documents specified in subsection (3) of this section if the fiscal year of the owner or operator ends during the ninety (90) days prior to the effective date of this administrative regulation and if the year-end financial statements for that fiscal year will be audited by an independent certified public accountant. The extension shall end no later than ninety (90) days after the end of the owner's or operator's fiscal year. To obtain the extension, the owner's or operator's chief financial officer is required to send a letter to the cabinet. This letter from the chief financial officer shall:

      1. Request the extension;

      2. Certify that he has grounds to believe that the owner or operator meets the criteria of the financial test;

      3. Specify for each facility to be covered by the test the EPA identification number, name, address, the amount of liability coverage and, when applicable, current closure and postclosure cost estimates to be covered by the test;

      4. Specify the date ending the owner's or operator's last complete fiscal year before the effective date of these administrative regulations;

      5. Specify the date, no later than ninety (90) days after the end of such fiscal year, when he will submit the documents specified in subsection (3) of this section; and

      6. Certify that the year-end financial statements of the owner or operator for such fiscal year will be audited by an independent certified public accountant.

      (4) An owner or operator of a new facility shall submit the items specified in subsection (3) of this section to the cabinet at least sixty (60) days before the date on which hazardous waste is first received for treatment, storage or disposal.

      (5) After the initial submission of items specified in subsection (3) of this section, the owner or operator shall send updated information to the cabinet within ninety (90) days after the close of each succeeding fiscal year. This information shall consist of all three (3) items specified in subsection (3) of this section.

      (6) If the owner or operator no longer meets the requirements of subsection (1) of this section, he shall obtain insurance, a letter of credit, a surety bond, a trust fund, or a corporate guarantee for the entire amount of required liability coverage as specified in this administrative regulation. Evidence of liability coverage shall be submitted to the cabinet within ninety (90) days after the end of the fiscal year for which the year-end financial data show that the owner or operator no longer meets the test requirements.

      (7) The cabinet may, based on a reasonable belief that the owner or operator may no longer meet the requirements of subsection (1) of this section, require reports of financial condition at any time from the owner or operator in addition to those specified in subsection (3) of this section. If the cabinet finds, on the basis of such reports or other information, that the owner or operator no longer meets the requirements of subsection (1) of this section, the owner or operator shall provide liability insurance as specified in this administrative regulation within thirty (30) days after notification of such a finding.

      (8) The cabinet may disallow use of this test on the basis of qualifications in the opinion expressed by the independent certified public accountant in his report on examination of the owner's or operator's financial statements (see subsection (3)(c) of this section). An adverse opinion or a disclaimer of opinion shall be cause for disallowance. The cabinet shall evaluate other qualifications on an individual basis. The owner or operator shall provide liability insurance for the entire amount of liability coverage as specified in this administrative regulation within thirty (30) days after notification of the disallowance.

 

      Section 7. Corporate Guarantee for Liability Coverage. (1) Subject to subsection (2) of this section, an owner or operator may meet the requirements of this administrative regulation by obtaining a written guarantee, referred to as Corporate Guarantee for Liability Coverage. The guarantor shall be the direct or higher-tier parent corporation of the owner or operator a firm whose parent corporation is also the parent corporation of the owner or operator, or a firm with a substantial business relationship with the owner or operator. The guarantor shall meet the requirements for owners or operators in Section 6(1) to (7) of this administrative regulation. The Corporate Guarantee for Liability Coverage shall be executed on DEP Form 6035H2 incorporated by reference in Section 4 of 401 KAR 34:080. A certified copy of the Corporate Guarantee for Liability Coverage shall accompany the items sent to the cabinet as specified in Section 6(3) of this administrative regulation. One (1) of these items shall be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the owner or operator, this letter shall describe the value received in consideration of the guarantee. If the guarantor is a firm with a substantial business relationship with the owner or operator, this letter shall describe the substantial business relationship and the value received in consideration of the guarantee. The terms of the Corporate Guarantee for Liability Coverage shall provide that:

      (a) If the owner or operator fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by sudden or nonsudden accidental occurrences (or both as the case may be), arising from the operation of facilities covered by this Corporate Guarantee for Liability Coverage, or fails to pay an amount agreed to in settlement of claims arising from or alleged to arise from such injury or damage, the guarantor shall do so up to the limits of coverage.

      (b) The Corporate Guarantee for Liability Coverage shall remain in force unless the guarantor sends notice of cancellation by certified mail to the owner or operator and to the cabinet. This guarantee may not be terminated unless and until the cabinet approves alternate liability coverage complying with 401 KAR 35:120 or this administrative regulation.

      (2)(a) In the case of corporations incorporated in the United States, a Corporate Guarantee for Liability Coverage may be used to satisfy the requirements of this administrative regulation only if the Attorney General or insurance commissioner of the state in which the guarantor is incorporated, each state in which a facility covered by the guarantee is located and in the state in which it has its principle place of business, have submitted a written statement to the director that a Corporate Guarantee for Liability Coverage executed as described in this administrative regulation and is a legally valid and enforceable obligation in that state and in Kentucky.

      (b) In the case of corporations incorporated outside of the United States, a Corporate Guarantee for Liability Coverage may be used to satisfy the requirements of this section only if the non-U.S. corporation has identified a registered agent for service of process in each state in which a facility covered by the guarantee is located, and in the state in which it has its principle place of business, and the Attorney General or insurance commissioner of each state in which a facility covered by the guarantee is located, and the state in which the guarantor corporation has its principle place of business, and the cabinet's Department of Law or the insurance commissioner of Kentucky has submitted a written statement to the cabinet that a Corporate Guarantee for Liability Coverage executed as described in this section and is a legally valid and enforceable obligation in that state and in Kentucky.

      (c) A corporate guarantee may be used to satisfy the requirements of this administrative regulation only if the assets to be collected are located in the United States. Failure to provide the written statement referenced in paragraphs (a) and (b) of this subsection shall be grounds for denial of the instrument.

 

      Section 8. Letter of Credit for Liability Coverage. (1) An owner or operator may satisfy the requirements of this section by obtaining an irrevocable stand-by letter of credit that conforms to the requirements of this administrative regulation and submitting a copy of the letter of credit to the cabinet. The irrevocable standby letter of credit may be submitted on either DEP Form 6035Q or DEP 6035N. The Irrevocable Standby Letter of Credit to Demonstrate Liability Coverage, DEP Form 6035Q and the Irrevocable Standby Letter of Credit to Demonstrate Liability Coverage with Standby Trust Agreement, DEP Form 6035N are incorporated by reference in Section 4 of 401 KAR 34:080. The owner or operator may use his own document, provided the language is identical to that specified in either DEP Form 6035Q or 6035N. If the owner or operator chooses to establish a trust fund as described in subsection (4) of this section, DEP Form 6035N shall be submitted along with the standby trust agreement as specified in subsection (5) of this section.

      (2) The financial institution issuing the letter of credit shall be an entity that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the federal or state agency.

      (3) The letter of credit shall be submitted on the form incorporated by reference in Section 4 of 401 KAR 34:080.

      (4) An owner or operator who uses a letter of credit to satisfy the requirements of this section may also establish a standby trust fund. Under the terms of such a letter of credit, all amounts paid pursuant to a draft by the trustee of the standby trust will be deposited by the issuing institution into the standby trust in accordance with instructions from the trustee. The trustee of the standby trust fund shall be 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.

      (5) The standby trust shall be submitted on DEP Form 6035R entitled "Standby Trust Agreement for Letter of Credit Demonstrating Liability Coverage", incorporated by reference in Section 4 of 401 KAR 34:080.

 

      Section 9. Surety Bond for Liability Coverage. (1) An owner or operator may satisfy the requirements of this section by obtaining a Payment Bond to Demonstrate Liability Coverage that conforms to the requirements of this administrative regulation and submitting a copy of the bond to the cabinet.

      (2) The surety company issuing the bond shall be among those listed as acceptable sureties on Federal bonds in the most recent Circular 570 of the U.S. Department of the Treasury.

      (3) The Payment Bond to Demonstrate Liability Coverage shall be submitted on the form incorporated by reference in Section 4 of 401 KAR 34:080.

      (4) A Payment Bond to Demonstrate Liability Coverage may be used to satisfy the requirements of this section only if the attorney general or insurance commissioners of the state in which the surety is incorporated, and each state in which a facility covered by the Payment Bond to Demonstrate Liability Coverage is located have submitted a written statement to the cabinet that a Payment Bond to Demonstrate Liability Coverage executed on DEP Form 6035O incorporated by reference in Section 4 of 401 KAR 34:080 is a legally valid and enforceable obligation in that state.

 

      Section 10. Trust Fund for Liability Coverage. (1) An owner or operator may satisfy the requirements of this section by establishing a trust fund that conforms to the requirements of this administrative regulation and submitting to the cabinet an originally signed duplicate of the Trust Agreement to Demonstrate Liability Coverage, executed on DEP Form 6035P, incorporated by reference in Section 4 of 401 KAR 34:080.

      (2) The trustee shall be 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.

      (3) The trust fund or liability coverage shall be funded for the full amount of the liability coverage to be provided by the trust fund before it may relied upon to satisfy the requirements of this section. If at any time after the trust fund is created the amount of funds in the trust fund is reduced below the full amount of the liability coverage to be provided, the owner or operator, by the anniversary date of the establishment of the trust fund, shall either add sufficient funds to the trust fund to cause its value to equal the full amount of liability coverage to be provided, or obtain other financial assurance as specified in this administrative regulation to cover the difference. (10 Ky.R. 228; Am. 588; eff. 12-2-83; 14 Ky.R. 879; 1201; eff. 1-4-88; 17 Ky.R. 343; 1450; eff. 11-15-90; 20 Ky.R. 1238; 1978; eff. 2-10-94; 23 Ky.R. 717; 2068; eff. 3-12-97.)