Section 360. Drawing on a financial responsibility mechanism

A. The director may require the surety or institution issuing a letter of credit to place the amount of funds stipulated by the board, up to the limit of funds provided by the financial responsibility mechanism, into the standby trust if:

1. a. The owner or operator fails to obtain and submit an alternate financial responsibility mechanism, or combination of mechanisms within 60 days after receiving notice of cancellation of the surety bond or letter of credit described in this subsection; or

b. The director determines or has a reasonable belief that a deposit of solid wastes and/or regulated medical wastes into state waters has occurred and so notifies the owner and operator, or the owner or operator has notified the department of a waste deposit into state waters from a vessel covered by the mechanism; or

2. The conditions of subsection B of this section are satisfied.

B. The director may draw on a standby trust fund or funds when:

1. The director makes a final determination that a waste deposit has occurred and immediate or long-term cleanup and/or containment for the waste deposit is needed, or the beneficial uses of state waters have been impaired as a result of the waste deposit and the owner and operator, after appropriate notice and opportunity to comply, have not conducted cleanup or containment; or

2. The director has received either:

a. Certification from the owner or operator and the third-party liability claimants and from attorneys representing the owner or operator and the third-party liability claimants that a third-party liability claim should be paid. The certification must be worded identically as specified in APPENDIX IX, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted;

b. A valid final court order establishing a judgment against the owner or operator for bodily injury or property damage caused by a waste deposit from a vessel covered by financial responsibility under this part and the board determines that the owner or operator has not satisfied the judgment.

C. If the director determines that the amount of cleanup and/or containment costs or beneficial use impact costs and third-party liability claims eligible for payment under subsection B of this section may exceed the balance of the standby trust fund and the obligation of the provider of financial responsibility, the first priority for payment shall be the cleanup and containment activities necessary to protect human health and the environment. The board shall direct payment from the standby trust fund for third-party liability claims in the order in which the board receives certifications under subdivision B 2 a of this section and valid court orders under subdivision B 2 b of this section.

Historical Notes

Derived from Volume 19, Issue 19, eff. July 2, 2003.

Statutory Authority

§§ 10.1-1402 and 10.1-1454.1 of the Code of Virginia.