Financial responsibility.

(1) An owner or operator of a hazardous waste facility, as a prerequisite to the operation, closure, postclosure, or corrective action at a facility in the state, shall guarantee the financial responsibility of such owner or operator for any liability which may be incurred in the operation of the facility and provide that, upon closure, abandonment, or interruption of operation of the facility, all appropriate measures are taken to prevent present and future damage to human health, safety, and welfare; the environment; and private and public property.

(2) Cash, the establishment of a trust fund, surety bonds, a letter of credit, or casualty insurance, a financial test, a corporate guarantee, or a combination thereof, may be used to satisfy the financial responsibility requirement. Any method of financial responsibility used to satisfy this requirement shall be maintained in the amount approved by the department and shall be maintained until the department determines that the waste is no longer a hazard and authorizes cancellation, modification, or liquidation of the financial responsibility.

(3) The amount of financial responsibility required shall be approved by the department upon each issuance, renewal, or modification of a hazardous waste facility authorization. Such factors as inflation rates and changes in operation may be considered when approving financial responsibility for the duration of the authorization. The Office of Insurance Regulation of the Department of Financial Services shall be available to assist the department in making this determination. In approving or modifying the amount of financial responsibility, the department shall consider:

(a) The amount and type of hazardous waste involved;

(b) The probable damage to human health and the environment;

(c) The danger and probable damage to private and public property near the facility;

(d) The probable time that the hazardous waste and facility involved will endanger the public health, safety, and welfare or the environment; and

(e) The probable costs of properly closing the facility and performing corrective action.

(4) The department may adopt rules which establish the procedures and guidelines it will use to approve or modify the amount of financial responsibility.

(5) Hazardous waste facilities shall, within 1 year after the effective date of rules regarding financial responsibility pursuant to this act, establish financial responsibility or have the requirement waived.

(6) By rule, the department may create exemptions from the financial responsibility requirement when, due to the size or magnitude of the operation, waiving the requirement will not conflict with the purposes of the requirement.

(7) A transporter of hazardous waste shall be bonded or insured to guarantee the financial responsibility of such transporter for any liability which may be incurred in the transportation of such hazardous waste and to provide that all appropriate measures are taken to prevent damage to human health, safety, and welfare, to the environment, and to private and public property. Financial guarantees specified in subsection (2) shall be used to satisfy the financial responsibility requirement.

(8)(a) In any case where the owner or operator is in bankruptcy, reorganization, or arrangement pursuant to the federal Bankruptcy Code or where with reasonable diligence jurisdiction in any state court or any of the federal courts cannot be obtained over an owner or operator likely to be solvent at the time of judgment, any claim arising from conduct for which evidence of financial responsibility must be provided under this section may be asserted directly against the guarantor providing such evidence of financial responsibility. In the case of any action pursuant to this subsection, such guarantor shall be entitled to invoke all rights and defenses which would have been available to the owner or operator if any action had been brought against the owner or operator by the claimant and which would have been available to the guarantor if an action had been brought against the guarantor by the owner or operator. 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 act.

(b)1. Nothing in this subsection shall be construed to limit any other state or federal statutory, contractual, or common-law liability of a guarantor to its owner or operator, including, but not limited to, the liability of such guarantor for bad faith either in negotiating or in failing to negotiate the settlement of any claim.

2. Nothing in this subsection shall be construed to diminish the liability of any person under s. 107 or s. 111 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or other applicable law.