W. Va. Code R. § 47-63-12

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 47-63-12 - Financial Responsibility Requirements

12.1. General Financial Assurance Requirements

12.1.a. The owner or operator of a regulated AST must demonstrate financial responsibility for taking corrective action caused by accidental releases arising from the operation of aboveground storage tank systems. All forms of financial assurance must be submitted in accordance with the AST Act and this Rule in a manner prescribed by the Secretary and must remain in effect for the operational life of the tank or tank facility.

12.1.b. The mechanisms used to demonstrate financial assurance under this section must be conditioned upon the owner or operator complying with the Aboveground Storage Tank Act, any rules promulgated thereunder, any order of the Secretary, and the terms and conditions of the certificate to operate and ensure that the funds necessary to meet the costs of containment and corrective action for known releases will be available whenever they are needed.

12.1.c. The owner or operator shall demonstrate financial responsibility in an amount calculated as follows:

12.1.c.1. For Level 1 ASTs, an amount equal to twenty cents per gallon (20¢/gal.) of the aggregate storage capacity for the tank or tank facility, at a minimum of five thousand dollars ($5,000).

12.1.c.2. For Level 2 ASTs, an amount equal to ten cents per gallon (10¢/gal.) of the aggregate storage capacity for the tank or tank facility, at a minimum of five thousand dollars ($5,000).

12.1.d. The financial assurance mechanisms must be legally valid, binding, and enforceable under State and federal law.

12.1.e. If, for any reason, an owner or operator fails to maintain proper financial assurance for taking corrective action, the Secretary shall issue a cease and desist order and revoke the certificate to operate, and the owner or operator may not operate the regulated AST until appropriate financial assurance has been obtained for the AST system.

12.1.f. If the owner and operator of an aboveground storage tank are separate entities, only one entity is required to demonstrate financial responsibility; however, both parties are liable in event of noncompliance.

12.2. Allowable Mechanisms of Financial Assurance or Bonding

12.2.a. Surety bond;

12.2.b. Collateral bond, including:

12.2.b.1. Cash deposits, certified checks, cashiers' checks or treasurer's checks that are issued, drawn on or certified by a bank or banking institution authorized to do business in this State;

12.2.b.2. Collateral securities;

12.2.b.3. Certificates, including:

12.2.b.3.A. Bonds of the United States or its possessions;

12.2.b.3.B. Bonds of the Farm Credit Bank;

12.2.b.3.C. Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality, or any county, district or municipality of other states;

12.2.b.3.D. Letters of credit from banks or banking institutions authorized to do business in this State and that are automatically renewable and irrevocable;

12.2.b.3.E. Certificates of deposit from banks or banking institutions authorized to do business in this State and that are automatically renewable and assignable; or

12.2.b.3.F. Negotiable bonds of the United States or its possessions; the Farm Credit Bank; or Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality, or any county, district or municipality of other states.

12.2.c. Escrow account;

12.2.d. Performance bonding fund participation as established by the Secretary;

12.2.e. Trust fund;

12.2.f. Tank insurance for performing corrective action;

12.2.g. The financial test of self-insurance;

12.2.h. Proof of assets;

12.2.i. Bonds or other surety alternatives issued in accordance with Articles 3, 6, and 6A of Chapter 22 of the West Virginia Code satisfies the financial responsibility requirements of the Act and this Rule, provided that the operator provides proof that the bond will cover tank-related costs of corrective action up to the amount of the bond; or

12.2.j. Other forms approved by the Secretary upon request and for good cause shown.

12.3. Use of Multiple Financial Mechanisms.

12.3.a. If the owner or operator uses separate mechanisms or separate combinations of mechanisms to demonstrate financial responsibility for taking corrective action caused by accidental releases; the amount of financial responsibility provided by the combination of mechanisms must be in the full amounts specified in Section 12.1.c.

12.3.b. Where an owner or operator uses a combination of separate mechanisms to cumulatively demonstrate financial responsibility, the mechanisms shall clearly and expressly state the order and priority of the mechanisms in paying for corrective action and such order and priority shall be consistent with all regulatory requirements for demonstrating financial responsibility.

12.3.c. The Secretary may refuse to accept the combination of financial assurance mechanism if it is determined that the financial guarantee is unacceptable or for any other reason, does not meet the purposes of the Act, this Rule, or orders of the Secretary, or other relevant financial, insurance, or bonding laws of the State of West Virginia.

12.3.d. The financial test and a guarantee provided by a corporate parent, sibling or grandparent may not be combined if the financial statements of the two firms are consolidated.

12.3.e. Mechanisms used to demonstrate financial assurance with the Aboveground Storage Tank Act, any rules promulgated thereunder, or any order of the Secretary, must adhere to the relevant financial, insurance, or bonding laws of the State of West Virginia.

12.4 Releases From the Requirements of Financial Responsibility

12.4.a. An owner or operator is no longer required to maintain financial responsibility for an AST after the tank has been properly closed, or if corrective action is required, after corrective action has been completed and the tank has been properly permanently closed.

W. Va. Code R. § 47-63-12