Administrative Code

Virginia Administrative Code
6/25/2022

Article 6. Liability Requirements for Transport, Storage, and Land Application of Biosolids

9VAC25-32-770. Definitions.

Article 6
Liability Requirements for Transport, Storage, and Land Application of Biosolids

The following terms are used in the specifications for liability insurance and the financial tests liability coverage. The definitions contained in this section are intended to assist in the understanding of these regulations and are not intended to limit the meanings of terms in a way that conflicts with general insurance industry usage or with generally accepted accounting practices.

"Assets" means all existing and all probable future economic benefits obtained or controlled by a particular entity.

"Current assets" means cash or other assets or resources commonly identified as those that are reasonably expected to be realized in cash or sold or consumed during the normal operating cycle of the business.

"Current liabilities" means obligations whose liquidation is reasonably expected to require the use of existing resources properly classifiable as current assets or the creation of other current liabilities.

"Independently audited" means an audit performed by an independent certified public accountant in accordance with generally accepted auditing standards.

"Legal defense costs" means any expenses that an insurer incurs in defending against claims of third parties brought under the terms and conditions of an insurance policy.

"Liabilities" means probable future sacrifices of economic benefits arising from present obligations to transfer assets or provide services to other entities in the future as a result of past transactions or events.

"Local government" means a county, city, or town or any authority, commission, or district created by one or more counties, cities, or towns.

"Net working capital" means current assets minus current liabilities.

"Net worth" means total assets minus total liabilities and is equivalent to owner's equity.

"Substantial business relationship" means the extent of a business relationship necessary under applicable state law to make a guarantee contract issued incident to that relationship valid and enforceable. A "substantial business relationship" must arise from a pattern of recent or ongoing business transactions, in addition to the guarantee itself, such that a currently existing business relationship between the guarantor and the permit holder is demonstrated to the satisfaction of the department.

"Tangible net worth" means the tangible assets that remain after deducting liabilities; such assets would not include intangibles such as goodwill and rights to patents or royalties.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-780. Liability requirements.

A. A permit holder or applicant must demonstrate financial responsibility for clean-up costs, personal injury, bodily injury, and property damage resulting from the transport, storage, and land application of biosolids in Virginia. The permit holder or applicant must have and maintain pollution liability and general liability coverage in the amount of $2 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.

B. The permit holder or applicant may demonstrate the required liability coverage by using one of the mechanisms specified below:

1. A pollution liability policy as well as a general liability policy that covers all activities associated with the "Transport, Storage, and Land Application" of biosolids as specified in 9VAC25-32-790;

2. Passing a corporate financial test as specified in 9VAC25-32-800 or using the corporate guarantee for liability coverage as specified in 9VAC25-32-810;

3. Passing a local government financial test as specified in 9VAC25-32-820 or using the local government guarantee for liability coverage as specified in 9VAC25-32-830;

4. Obtaining a letter of credit for liability coverage as specified in 9VAC25-32-840; or

5. Obtaining a trust fund for liability coverage as specified in 9VAC25-32-850.

C. The permit holder or applicant shall notify the department in writing within 30 days whenever:

1. A claim results in a reduction in the amount of financial assurance for liability coverage provided by a financial instrument authorized in this section;

2. A certification of valid claim for bodily injury or property damages caused by the transport, storage, or land application of biosolids in Virginia is entered between the owner or operator and a third-party claimant for liability coverage in this section; or

3. A final court order establishing a judgment for bodily injury or property damage caused by the transport, storage, or land application of biosolids in Virginia is issued against the permit holder or applicant or an instrument that is providing financial assurance for liability coverage authorized in this section.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-790. Liability insurance.

A. Each pollution and general liability insurance policy must be amended by attachment of an endorsement or evidenced by a certificate of liability insurance. The wording of the endorsement must be identical to that specified in the Biosolids Liability Endorsement form. The wording of the certificate of insurance must be identical to that specified in the Certificate of Liability Insurance form. The permit holder or applicant must submit a signed duplicate original of the endorsement or the certificate of insurance to the department. If requested by the department, the permit holder or applicant must provide a signed duplicate original of the insurance policy. An applicant for a new permit must submit the signed duplicate original of the biosolids liability endorsement or the certificate of liability insurance to the department at least 60 days before the initial application of biosolids. The insurance must be effective before the initial application of biosolids.

B. Each insurance policy must be issued by an insurer that, at a minimum, is licensed to transact the business of insurance or eligible to provide insurance as an excess or surplus lines insurer in Virginia and the insurer shall be in good financial position, as demonstrated by the AM Best (A++, A+, A, A-, B++, B+), Standard and Poor's (AAA, AA, A, BBB), or Moody's (Aaa, Aa, A, Baa) financial strength ratings.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-800. Corporate financial test.

A. A permit holder or applicant may satisfy the requirements of this section by demonstrating that he passes a financial test as specified in this section. To pass this test the permit holder or applicant must meet the criteria of subsection B of this section.

B. A permit holder or applicant must have:

1. Net working capital and tangible net worth each at least six times the amount of liability coverage to be demonstrated by this test, and a tangible net worth of at least $10 million; or

2. 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 a tangible net worth of at least $10 million; and a tangible net worth at least six times the amount of liability coverage to be demonstrated by this test; and assets in the United States amounting to either:

a. At least 90% of this total assets; or

b. At least six times the amount of liability coverage to be demonstrated by this test.

3. For the purposes of this section, the phrase "amount of liability coverage" refers to the annual aggregate amounts for which coverage is required under 9VAC25-32-780 A.

C. To demonstrate that he passes this test, the permit holder or applicant must submit the following three items to the department:

1. A letter signed by the permit holder or applicant's chief financial officer;

2. A copy of the independent certified public accountant's report on examination of the permit holder or applicant's financial statements for the latest completed fiscal year; and

3. A special report from the permit holder or applicant's independent certified public accountant to the permit holder or applicant stating that:

a. He has compared the data that 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

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

D. A new permit holder or new applicant must submit the items specified in subsection C of this section at least 30 days before the date on which the biosolids are first applied.

E. After the initial submission of the items specified in subsection C of this section, the permit holder or applicant must send updated information to the department within 90 days after the close of each succeeding fiscal year. This information must consist of all three items specified in subsection C of this section.

F. If the permit holder or applicant no longer meets the requirements of subsection B of this section, he must obtain insurance, a letter of credit, a surety bond, a trust fund, or a guarantee for the entire amount of the required liability coverage as specified in this section. Evidence of liability coverage must be submitted to the department within 90 days after the end of the fiscal year for which the year-end financial data show that the permit holder or applicant no longer meets the test requirements.

G. The department 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 an examination of the permit holder's or applicant's financial statements. An adverse opinion or a disclaimer of opinion may be cause for disallowance. The department will evaluate other qualifications on an individual basis. The permit holder or applicant must provide evidence for the entire amount of the required liability coverage as specified in this section within 30 days of notification of disallowance.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-810. Corporate guarantee.

A. A permit holder or applicant may meet the requirements of this section by obtaining a written guarantee, hereafter referred to as "guarantee." The guarantor must be the direct or higher-tier parent corporation of the permit holder or the applicant; a firm whose parent corporation is also the parent corporation of the permit holder or applicant; or a firm with a substantial business relationship with the permit holder or applicant. The guarantor must meet the requirements for the permit holder or applicant as specified in 9VAC25-32-800. A certified copy of the guarantee must accompany the items sent to the department as specified in 9VAC25-32-800 C. One of these items must be the letter from the guarantor's chief financial officer. If the guarantor's parent corporation is also the parent corporation of the permit holder or the applicant, this letter must describe the value received in consideration of the guarantee. If the guarantor is a firm with a substantial business relationship with the permit holder or applicant, this letter must describe this substantial business relationship and the value received in consideration of the guarantee.

B. If the permit holder or applicant fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by the transport, storage, or land application of biosolids in Virginia or fails to pay an amount agreed to in a settlement of claims arising from or alleged to arise from such injury or damage, the guarantor will do so up to the limits of coverage.

C. The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the permit holder or applicant and to the department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the permit holder or applicant and the department, as evidenced by return receipts.

D. If a guarantee is cancelled, the permit holder or applicant shall, within 90 days following receipt of the cancellation notice by the permit holder or applicant and the department, obtain alternate financial assurance and provide evidence of that alternate financial assurance to the department. If the permit holder or applicant fails to provide evidence of alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days following the close of the guarantor's fiscal year; obtain alternate assurance acceptable to the department; and provide evidence of the alternate assurance to the department.

E. Recordkeeping and reporting.

1. The permit holder or applicant shall submit a signed original guarantee to the department along with the items required under 9VAC25-32-800 C. The guarantee shall be worded as specified on the Corporate Guarantee form.

2. The permit holder or applicant is no longer required to maintain the items specified in 9VAC25-32-800 C when:

a. The permit holder or applicant substitutes alternate financial assurance as specified in this section; or

b. The permit holder or applicant is released from the requirements of this chapter.

F. If a guarantor no longer meets the requirements specified in this section, the permit holder or applicant shall, within 90 days following close of the guarantor's fiscal year, obtain alternate financial assurance acceptable to the department and submit evidence of the alternate financial assurance to the department. If the permit holder or applicant fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-820. Local government financial test.

A. A permit holder or applicant that satisfies the requirements of this section may demonstrate financial assurance using the local government financial test.

B. The permit holder or applicant shall satisfy the provisions of this section as applicable:

1. If the permit holder or applicant has outstanding, rated general obligation bonds that are not secured by insurance, a letter of credit, or other collateral or guarantee, he shall supply the department with documentation demonstrating that the permit holder or applicant has a current rating of Aaa, Aa, A, or Baa as issued by Moody's or AAA, AA, A, or BBB as issued by Standard and Poor's on all such general obligation bonds; or

2. If the permit holder or applicant does not have outstanding, rated general obligation bonds, he shall satisfy each of the following financial ratios based on the permit holder's or applicant's most recent audited annual financial statements:

a. A ratio of cash plus marketable securities to total expenditures greater than or equal to 0.05; and

b. A ratio of annual debt service to total expenditures less than or equal to 0.20.

C. The permit holder or applicant shall prepare his financial statements in conformity with generally accepted accounting principles for governments and have his financial statements audited by an independent certified public accountant or by the Auditor of Public Accounts.

D. A permit holder or applicant is not eligible to assure its obligations under this section if he:

1. Is currently in default on any outstanding general obligation bonds;

2. Has any outstanding general obligation bonds rated lower than Baa as issued by Moody's or BBB as issued by Standard and Poor's;

3. Operated at a deficit equal to 5.0% or more of total annual revenue in each of the past two fiscal years; or

4. Receives an adverse opinion, disclaimer of opinion, or other qualified opinion from the independent certified public accountant or Auditor of Public Accounts auditing his financial statements as required under subsection C of this section. However, the department may evaluate qualified opinions on a case-by-case basis and allow use of the financial test in cases where the department deems the qualification insufficient to warrant disallowance of the test.

E. The local government permit holder or applicant must submit to the department the following items:

1. An original letter signed by the local government's chief financial officer stating that the permit holder or applicant meets the requirements of this section;

2. The local government's independently audited year-end financial statements for the latest fiscal year, including the unqualified opinion of the auditor who must be an independent, certified public accountant or an appropriate state agency that conducts equivalent comprehensive audits;

3. A report of the local government from the local government's independent certified public accountant or the Auditor of Public Accounts based on performing an agreed upon procedures engagement relative to the financial ratios required by subdivision B 2 of this section, if applicable, and the requirements of this section. The certified public accountant's or state agency's report shall state the procedures performed and the certified public accountant's or state agency's findings; and

4. A copy of the comprehensive annual financial report (CAFR) used to comply with subdivision B 2 of this section.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-830. Local government guarantee.

A. A local government who is also the permit holder or applicant may meet the requirements of this section by providing a written guarantee, herein referred to as "guarantee" by a local government. The guarantor shall meet the requirements of the local government financial test in section 9VAC25-32-820 and shall comply with the terms of the written guarantee identified in subsection B of this section.

B. Terms of the written guarantee.

1. The guarantee shall be effective before the initial application of biosolids; and

2. The guarantee shall provide that:

a. If the permit holder or applicant fails to satisfy a judgment based on a determination of liability for bodily injury or property damage to third parties caused by the transport, storage, or land application of biosolids in Virginia 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 will do so up to the limits of coverage;

b. The guarantee will remain in force unless the guarantor sends notice of cancellation by certified mail to the permit holder or applicant and to the department. Cancellation may not occur, however, during the 120 days beginning on the date of receipt of the notice of cancellation by both the permit holder or applicant and the department, as evidenced by return receipts; and

c. If a guarantee is cancelled, the permit holder or applicant shall within 90 days following receipt of the cancellation notice by the permit holder or the applicant and the department obtain alternate financial assurance and notify the department. If the permit holder or applicant fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days following the close of the guarantor's fiscal year; obtain alternative financial assurance acceptable to the department; and submit evidence of that alternate financial assurance to the department.

C. Recordkeeping and reporting.

1. The permit holder or applicant shall submit a signed original guarantee on the Local Government Guarantee form to the department along with the items required under 9VAC25-32-820 E before the initial application of biosolids.

2. The permit holder or applicant is no longer required to maintain the items specified in 9VAC25-32-820 E when:

a. The permit holder or applicant substitutes alternate financial assurance as specified in this section; or

b. The permit holder or applicant is released from the requirements of this section.

D. If a local government guarantor no longer meets the requirements of this section, the permit holder or applicant shall, within 90 days following the close of the guarantor's fiscal year, obtain alternate financial assurance acceptable to the department and submit evidence of that alternate financial assurance to the department. If the permit holder or applicant fails to provide alternate financial assurance within the 90-day period, the guarantor shall provide that alternate financial assurance within 120 days.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-840. Letter of credit.

A. A permit holder or applicant may satisfy the requirements of this article by obtaining an irrevocable standby letter of credit that satisfies the terms of the letter of credit and by submitting the original letter of credit to the department.

B. Terms of the letter of credit.

1. The letter of credit shall be effective before the initial application of biosolids.

2. The issuing institution shall be a bank or other financial institution that has the authority to issue letters of credit and whose letter of credit operations are regulated and examined by the Commonwealth of Virginia, by a federal agency, or by an agency of another state.

3. The letter of credit shall be irrevocable and issued for a period of at least one year in an amount of $2 million to cover the costs for clean-up costs, personal injury, bodily injury, and property damage that may result from the transport, storage, or land application of biosolids in Virginia by the permit holder or applicant.

4. The letter of credit shall provide that the expiration date will be automatically extended for a period of at least one year. If the issuing institution decides not to extend the letter of credit beyond the current expiration date, it shall, at least 120 days before the date, notify both the permit holder or applicant and the department by certified mail of that decision. The 120-day period will begin on the date of receipt by the department as shown on the signed return receipt. Expiration cannot occur, however, while an enforcement action is pending. Within 60 days of receipt of notice from the issuing institution that it does not intend to extend the letter of credit, the permit holder or applicant shall obtain alternate financial assurance and submit evidence of the alternate financial assurance to the department.

C. In the event of failure of the permit holder or applicant to comply with the requirements of this article, the department may cash the letter of credit.

D. The permit holder or applicant may cancel the letter of credit only if alternate financial assurance acceptable to the department is substituted as specified in this article or if the permit holder or applicant is released by the department from the requirements of this chapter.

E. The department shall return the original letter of credit to the issuing institution for termination when:

1. The permit holder or applicant substitutes acceptable alternate financial assurance for clean-up costs, personal injury, bodily injury, and property damage resulting from the transport, storage, or land application of biosolids in Virginia; or

2. The department notifies the permit holder or applicant that he is no longer required by this article to maintain financial assurance for clean-up costs, personal injury, bodily injury, and property damage resulting from the transport, storage, or land application of biosolids in Virginia.

F. The permit holder or applicant shall establish a standby trust fund. The standby trust fund shall meet the requirements of 9VAC25-32-850, except the requirements for initial payments and subsequent annual payments.

G. Payments made under the terms of the letter of credit will be deposited by the issuing institution directly into the standby trust fund. Payments from the trust fund shall be approved by the department.

H. The department may cash the letter of credit if it is not replaced 30 days prior to expiration with alternate financial assurance approved by the department.

I. The wording of the letter of credit shall be identical to that specified in the Letter of Credit form.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

9VAC25-32-850. Trust fund.

A. A permit holder or applicant may satisfy the requirements of this article by establishing a trust fund that conforms to the requirements of subsection B of this section and submitting an originally signed duplicate of the trust agreement to the department.

B. Trust fund requirements.

1. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by the Commonwealth of Virginia, by a federal agency, or by an agency of another state.

2. The trust fund for liability coverage must be funded for the full amount of the liability coverage to be provided by the trust fund before it may be 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 permit holder or applicant, by the anniversary date of the establishment of the fund, must either add sufficient funds to the trust fund to cause its value to be equal to the full amount of the liability coverage to be provided, or obtain other alternate financial assurance as specified in this section to cover the difference.

3. For purpose of this section, "the full amount of liability coverage provided" means the amount of coverage for clean-up costs, personal injury, bodily injury, and personal damage resulting from the transport, storage, or land application of biosolids in Virginia.

4. The wording of the trust fund must be identical to that specified in the Trust Fund form.

Statutory Authority

§ 62.1-44.15 of the Code of Virginia.

Historical Notes

Derived from Virginia Register Volume 29, Issue 24, eff. September 1, 2013.

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