§ 236.604. Assurance for liability during operation.
(a) Prior to accepting waste, the licensee shall have in effect insurance or other financial assurance approved by the Department to compensate persons for bodily injury or property damage from sudden or nonsudden incidents arising from the operation of the facility.
(b) In approving the licensee’s insurance or other financial assurance, the Department will consider factors that may affect the licensee’s potential exposure to liability. The factors include site and waste characteristics, facility design, operating procedures, population within 3 miles of the facility and industrial, commercial or other economic activity within 3 miles of the site.
(c) In approving the licensee’s insurance or other financial assurance the Department will consider the licensee’s potential exposure to liability as a result of claims for bodily injury or property damage brought against the licensee; and the licensee’s duty to defend and indemnify the Commonwealth, the host municipality, the host county and their agents and employes against claims, actions, demands, liabilities and losses at law and equity.
(d) Based on consideration of the factors described in subsections (b) and (c), the Department will determine an amount initially sufficient for providing liability coverage in compliance with this section. The amount determined may not be less than the capital cost of bidding for, siting, acquiring, licensing, planning, developing and constructing the facility.
(e) After commencement of operation, the licensee shall annually provide to the Department information the Department deems necessary for its consideration in determining additional amounts of liability coverage necessary to meet the requirements of the act and this chapter. In determining the additional amounts of liability coverage required, the Department will consider the factors identified in subsections (b) and (c).
(f) The determination and approval by the Department of amounts or types of financial assurance under this section does not affect the licensee’s liability or the duty of the licensee to have available funds that may be necessary to satisfy the liability.
(g) Subject to the approval of the Department, the licensee may use an insurance, financial or surety arrangement or combination of arrangements to provide the assurances required by this section. The licensee may provide evidence of commercial insurance, alone or in combination with other acceptable financial or surety arrangements, to satisfy the requirements of this section.
(h) Evidence of commercial insurance shall include the insurer’s policy, including endorsements thereto, evidencing the liability insurance coverage it intends to issue covering the facility for third party claims for bodily injury and property damage caused by sudden incidents or nonsudden incidents arising from the operation of the facility.
(i) A commercial insurance policy offered to comply with the requirement for compensation of third parties for bodily injury and property damage caused by sudden or nonsudden incidents arising from the operation of the facility shall contain the following provisions:
(1) Bankruptcy or insolvency of the insured does not relieve the insurer of its obligations under the policy.
(2) The insurer is liable for the payment of any amount within a deductible which may apply to the policy, with a right of reimbursement by the insured or, in the alternative, the insurer includes, within the policy, a provision to pay on behalf of the insured a deductible amount.
(3) The beginning and ending dates, including tail periods, for the policy.
(4) The insurer will give at least 90 days notice to the Department and the insured before cancellation, termination or expiration of the policy, if upon expiration, the policy will not be renewed.
(5) The policy may not be cancelled by anyone before the expiration of the 90-day notice period.
(j) The insurance policy shall be issued by a primary insurer or coinsurers licensed or authorized to do business in this Commonwealth or designated by the Insurance Commissioner as an eligible surplus lines insurer. The primary insurer may reinsure the insurance policy with secondary insurers—reinsurers—who are licensed or authorized to do business in Canada, West Germany, Switzerland, France, or a state of the United States.
(k) The primary insurer may be a commercial insurer, a captive insurer—subject to subsection (j)—or a risk retention group as defined in the Product Liability Risk Retention Act of 1981 (15 U.S.C.A. § § 3901—3906) as amended by the Liability Risk Retention Act of 1986 (15 U.S.C.A. § § 3901—3903).
(l) The policy shall provide that the insurer will adhere to the insurance law of the Commonwealth regarding settlement of claims and will be bound by the Unfair Insurance Practices Act (40 P. S. § § 1171.1—1171.15).
(m) The insurance policy shall follow the comprehensive general liability policy forms approved by the Insurance Department and shall include coverage for environmental impairment liability.
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