Current through Reg. 50, No. 13; March 28, 2025
(a) A
responsible person subject to this subchapter shall obtain and maintain an
environmental impairment insurance policy that must:
(1) reflect the responsible person as the
insured;
(2) reflect total coverage
of not less than $3 million per occurrence with a policy limit of not less than
$3 million, exclusive of legal defense costs;
(3) be issued by an insurance company
licensed to transact the business of insurance in Texas or eligible to provide
insurance as an excess or surplus lines insurer in Texas that has a rating of
A- or better by A.M. Best Company;
(4) designate the Texas Commission on
Environmental Quality as an additional insured; and
(5) be evidenced by a certificate of
insurance worded identically to the wording specified in §
37.9155 of this title (relating to
Certificate of Insurance for Environmental Impairment).
(b) The insurance afforded under the policy
must provide the following.
(1) The insurance
policy must guarantee that funds be available to provide for corrective action
related to the facility. The policy must also guarantee that once corrective
action begins, the insurer shall be responsible for paying out funds, up to an
amount equal to the policy limit, upon the direction of the executive director,
to such party or parties as the executive director specifies.
(2) The insurer may elect to cancel,
terminate, or fail to renew the policy by sending notice by certified mail to
the responsible person and the executive director. Cancellation, termination,
or failure to renew may not occur, however, during 120 days beginning with the
date of receipt of the notice of cancellation, termination, or failure to renew
by both the executive director and the responsible person, as evidenced by the
return receipts.
(3) Cancellation,
termination, or failure to renew may not occur and the policy must remain in
full force and effect in the event that on or before the date of expiration:
(A) corrective action is ordered by the
executive director or by a United States district court or other court of
competent jurisdiction;
(B) the
responsible person is named as debtor in a voluntary or involuntary proceeding
under Title 11(Bankruptcy), United States Code; or
(C) the premium due is paid.
(4) Each policy must contain a
provision allowing assignment of the policy to a successor responsible person.
Such assignment may be conditional upon consent of the insurer, provided such
consent is not unreasonably refused.
(5) Whenever requested by the executive
director, the insurer agrees to furnish to the executive director a signed
duplicate original of the policy and all endorsements.
(c) A single $3 million policy limit and per
occurrence limit may be obtained for all facilities for which the responsible
person is required to provide environmental impairment insurance.
(d) The responsible person must maintain the
policy in full force and effect until the executive director consents to
termination of the policy as provided in §
37.9140 of this title (relating to
Termination of Mechanisms). Failure to pay the premium, without substitution of
alternate environmental impairment insurance coverage as specified in this
subchapter, shall constitute a violation of these regulations, warranting such
remedy as the executive director deems necessary including revocation of the
permit.
(e) The policy may not
contain an exclusion for intentional, willful, knowing, or deliberate
noncompliance with a statute, regulation, order, notice, or government
instruction.
