Section 190. Insurance

A. An owner or operator may demonstrate financial assurance for closure, post-closure care or corrective action by obtaining insurance which conforms to the requirements of this section. The insurance shall be effective before the initial receipt of waste or before January 7, 1998, whichever is later, in the case of closure and post-closure care, or no later than 120 days after the corrective action remedy has been selected. The insurer must be licensed pursuant to Chapter 10 (§ 38.2-1000 et seq.) of Title 38.2 of the Code of Virginia. The owner or operator shall provide the director with an original signed copy of the insurance policy and place a copy in the operating record. The department shall be listed as an additional insured on the policy, but the department will not be obligated for payment of the premium in any manner.

B. The insurance policy shall guarantee that funds will be available to close the solid waste management unit whenever final closure occurs, to provide post-closure care for the solid waste disposal unit whenever the post-closure care period begins, or to perform corrective action whenever the corrective action period begins, whichever is applicable. The policy shall also guarantee that once closure, post-closure care, or corrective action begins, the insurer will be responsible for paying funds to the owner or operator or other person authorized to conduct closure, post-closure care, or corrective action up to an amount equal to the face amount of the policy.

C. The insurance policy shall be issued and maintained for a face amount at least equal to the current cost estimate for closure, post-closure care, or corrective action, whichever is applicable. The term face amount means the total amount the insurer is obligated to pay under the policy. Actual payments by the insurer will not change the face amount although the insurer's future liability will be lowered by the amount of the payments.

D. The insurance policy shall provide that the insurer will pay closure, post-closure, or corrective action expenditures, whichever is applicable, on behalf of the owner or operator or any other person authorized to conduct closure, post-closure care, or corrective action. Justification and documentation of the expenditures must be submitted to and approved by the director. Requests for payment will be granted by the insurer only if the remaining value of the policy is sufficient to cover the remaining costs of closure, post-closure care, or corrective action, or if the director approves the payment. The insurer shall notify the director when a payment has been made.

E. Each policy shall contain a provision allowing assignment of the policy to a successor owner or operator. Such assignment may be conditional upon consent of the insurer, provided that such consent is not unreasonably refused.

F. The insurance policy shall provide that the insurer may not cancel, terminate or fail to renew the policy except for failure to pay the premium. The automatic renewal of the policy shall, at a minimum, provide the insured with the option of renewal at the face amount of the expiring policy. If there is a failure to pay the premium, the insurer may cancel the policy by sending notice of cancellation by certified mail to the owner and operator and to the director 120 days in advance of cancellation. Within 60 days of receipt of notice from the insurer that it does not intend to renew the policy, the owner or operator shall obtain alternate financial assurance and submit it to the director.

G. For insurance policies providing coverage for post-closure care, commencing on the date that liability to make payments pursuant to the policy accrues, the insurer will thereafter annually increase the face amount of the policy. Such increase shall be equivalent to the face amount of the policy, less any payments made, multiplied by an amount equivalent to 85% of the most recent investment rate or of the equivalent coupon-issue yield announced by the U.S. Treasury for 26-week Treasury securities.

H. The owner or operator may cancel the insurance policy only if alternate financial assurance is substituted as specified in this article, or if the owner or operator, is no longer required to demonstrate financial responsibility.

I. Within 10 days after commencement of a voluntary or involuntary proceeding under Title 11 (Bankruptcy) of the U.S. Code, naming an owner or operator as debtor, the owner or operator shall notify the director by certified mail of such commencement.

J. The wording of the insurance certificate shall be identical to the wording specified in 9VAC20-70-290 E.

Historical Notes

Derived from Volume 14, Issue 06, eff. January 7, 1998; amended, Virginia Register Volume 18, Issue 03, eff. November 21, 2001.

Statutory Authority

§§ 10.1-1402 and 10.1-1410 of the Code of Virginia.