A. An owner or
operator may satisfy the requirements of this chapter by obtaining an
irrevocable standby letter of credit that conforms to the requirements of this
section and by submitting an originally signed duplicate of the letter of
credit to the department. The issuing institution shall be an entity that has
the authority to issue letters of credit in the Commonwealth of Virginia and
whose letter-of-credit operations are regulated and examined by a federal
agency or the State Corporation Commission.
B. The letter of credit shall be on financial
institution letterhead and worded as follows, except that instructions in
parentheses are to be replaced with the relevant information and the
parentheses deleted.
IRREVOCABLE STANDBY LETTER OF CREDIT
(Name and address of issuing institution)
Beneficiary:
Director
Department of Environmental Quality (DEQ)
P.O. Box 1105
Richmond, Virginia 23218
1111 East Main Street, Suite 1400
Richmond, Virginia 23218
Dear Sir or Madam: We hereby establish our Irrevocable
Standby Letter of Credit No.________ in your favor, at the request and for the
account of (owner or operator name) of (address) up to the aggregate amount of
(in words) U.S. dollars, ($(insert dollar amount)), available upon presentation
of
(1) your sight draft, bearing
reference to this letter of credit, No._______ and
(2) your signed statement reading as follows:
"I certify that the amount of the draft is payable pursuant
to regulations issued under authority of §
62.1-44.18:3 of the Code of
Virginia."
This letter of credit may be drawn on to implement the
closure plan for the facility identified below in the amount of (in words)
($(insert dollar amount)). (Name of facility and address of the facility
assured by this mechanism, and number of hookups served by the system.)
This letter of credit is effective as of (date) and shall
expire on (date), but such expiration date shall be automatically extended for
a period of (at least the length of the original term) on (expiration date) and
on each successive expiration date, unless, at least 120 days before the
current expiration date, we notify the Director of the DEQ and the owner or
operator by certified mail that we have decided not to extend this letter of
credit beyond the current expiration date. In the event that the owner or
operator is so notified, any unused portion of the credit shall be available
upon presentation of your sight draft for 120 days after the date of receipt by
the Director of the DEQ and the owner or operator, as shown on the signed
return receipt.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor such draft upon
presentation to us, and we shall submit the amount of the draft directly to DEQ
in accordance with your instructions.
We certify that the wording of this letter of credit is
identical to the wording required in
9VAC25-650-110 B
as such regulations were constituted on the date shown immediately
below.
Attest:
(Signature(s) and title(s) of official(s) of issuing
institution)
(Date)
This credit is subject to (insert "the most recent edition
of the Uniform Customs and Practice for Documentary Credits, published by the
International Chamber of Commerce," or "the Uniform Commercial Code").
C. The letter of credit
shall be irrevocable and issued for a period of at least one year in an amount
at least equal to the current cost estimate for implementation of the closure
plan. 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 expiration date, notify
both the owner or operator 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 procedure is pending. If the letter of credit is
canceled by the issuing institution, the owner or operator shall obtain
alternate financial assurance to be in effect prior to the expiration date of
the letter of credit.
D. Whenever
the approved cost estimate increases to an amount greater than the amount of
credit, the owner or operator shall, within 60 days of the increase, cause the
amount of credit to be increased to an amount at least equal to the new
estimate or obtain other financial assurance as specified in this part to cover
the increase. Whenever the cost estimate decreases, the letter of credit may be
reduced to the amount of the new estimate following written approval by the
department. The issuing institution shall send the notice of an increase or
decrease in the amount of the credit to the department by certified mail within
60 days of the change.
E. Following
a determination by the department that the owner or operator has failed to
provide alternate financial assurance within 60 days after the date the notice
of cancellation is received by the owner or operator or has ceased operations
at the facility or has failed to implement the closure plan in accordance with
the approved plan or other permit or special order requirements, the department
will draw on the letter of credit.
F. The owner or operator may cancel the
letter of credit only if alternate financial assurance acceptable to the
department is substituted as specified in this part or if the owner or operator
is released by the department from the requirements of this chapter.
G. The department shall return the original
letter of credit to the issuing institution for termination when:
1. The owner or operator substitutes
acceptable alternate financial assurance for implementation of the closure plan
as specified in this part; or
2.
The department notifies the owner or operator that he is no longer required by
this part to maintain financial assurance for implementation of the closure
plan for the facility.
Notes
9
Va. Admin. Code §
25-650-110
Derived from Virginia
Register Volume 18, Issue 4, eff. December 5, 2001; amended, Virginia Register
Volume 28, Issue 18, eff. June 6, 2012; Amended,
Virginia
Register Volume 31, Issue 21, eff. 7/30/2015; Amended,
Virginia
Register Volume 34, Issue 13, eff.
2/19/2018; Amended,
Virginia
Register Volume 39, Issue 5, eff.
11/23/2022.
Statutory Authority: §§
62.1-44.15 and
62.1-44.18:3 of the Code of
Virginia.
