(4) Per
335-14-2-.01(4)(a)24.(vi)(VI),
an owner or operator of a reclamation or intermediate facility must have
financial assurance as a condition of the exclusion as required by
335-14-2-.01(4)(a)24.
He must choose from the options as specified in
335-14-2-.08(4)(a) through
(e).
(a)
Trust fund
1. An owner or operator may
satisfy the requirements of
335-14-2-.08(4)
by establishing a trust fund which conforms to the requirements of
335-14-2-.08(4)(a)
and submitting an originally signed duplicate of the trust agreement to the
Department. The trustee must be an entity which has the authority to act as a
trustee and whose trust operations are regulated and examined by a Federal or
State agency.
2. The wording of the
trust agreement must be identical to the wording specified in
335-14-2-.08(12)(a)1,
and the trust agreement must be accompanied by a formal certification of
acknowledgment (for example, see
335-14-2-.08(12)(a)2.
Schedule A of the trust agreement must be updated within 60 days after a change
in the amount of the current cost estimate covered by the agreement.
3. The trust fund must be funded for the full
amount of the current cost estimate before it may be relied upon to satisfy the
requirements of
335-14-2-.08.
4. Whenever the current cost estimate
changes, the owner or operator must compare the new estimate with the trustee's
most recent annual valuation of the trust fund. If the value of the fund is
less than the amount of the new estimate, the owner or operator, within 60 days
after the change in the cost estimate, must either deposit an amount into the
fund so that its value after this deposit at least equals the amount of the
current cost estimate, or obtain other financial assurance as specified in
335-14-2-.08(4)
to cover the difference.
5. If the
value of the trust fund is greater than the total amount of the current cost
estimate, the owner or operator may submit a written request to the Department
for release of the amount in excess of the current cost estimate.
6. If an owner or operator substitutes other
financial assurance as specified in
335-14-2-.08(4)
for all or part of the trust fund, he may submit a written request to the
Department for release of the amount in excess of the current cost estimate
covered by the trust fund.
7.
Within 60 days after receiving a request from the owner or operator for release
of funds as specified
335-14-2-.08(4)(a)5.
or 6., the Department will instruct the trustee to release to the owner or
operator such funds as the Department specifies in writing. If the owner or
operator begins final closure under subpart
335-14-5-.07 or
335-14-6-.07, an owner or
operator may request reimbursements for partial or final closure expenditures
by submitting itemized bills to the Department. The owner or operator may
request reimbursements for partial closure only if sufficient funds are
remaining in the trust fund to cover the maximum costs of closing the facility
over its remaining operating life. No later than 60 days after receiving bills
for partial or final closure activities, the Department will instruct the
trustee to make reimbursements in those amounts as the Department specifies in
writing, if the Department determines that the partial or final closure
expenditures are in accordance with the approved closure plan, or otherwise
justified. If the Department has reason to believe that the maximum cost of
closure over the remaining life of the facility will be significantly greater
than the value of the trust fund, he may withhold reimbursements of such
amounts as he deems prudent until he determines, in accordance with
335-14-2-.08 that the owner or
operator is no longer required to maintain financial assurance for final
closure of the facility. If the Department does not instruct the trustee to
make such reimbursements, he will provide to the owner or operator a detailed
written statement of reasons.
8.
The Department will agree to termination of the trust when:
(i) An owner or operator substitutes
alternate financial assurance as specified in
335-14-2-.08(4);
or
(ii) The Department releases the
owner or operator from the requirements of
335-14-2-.08 in accordance with
335-14-2-.08(4)(i).
(b) Surety bond guaranteeing payment into a
trust fund.
1. An owner or operator may
satisfy the requirements of
335-14-2-.08(4)
by obtaining a surety bond which conforms to the requirements of
335-14-2-.08(4)(b)
and submitting the bond to the Department. The surety company issuing the bond
must, at a minimum, be among those listed as acceptable sureties on Federal
bonds in Circular 570 of the U.S. Department of the Treasury.
2. The wording of the surety bond must be
identical to the wording specified in
335-14-2-.08(12)(b).
3. The owner or operator who uses a surety
bond to satisfy the requirements of
335-14-2-.08(4)
must also establish a standby trust fund. Under the terms of the bond, all
payments made thereunder will be deposited by the surety directly into the
standby trust fund in accordance with instructions from the Department. This
standby trust fund must meet the requirements specified in
335-14-2-.08(4)(a),
except that:
(i) An originally signed
duplicate of the trust agreement must be submitted to the Department with the
surety bond; and
(ii) Until the
standby trust fund is funded pursuant to the requirements of
335-14-2-.08(4),
the following are not required by these regulations:
(I) Payments into the trust fund as specified
in
335-14-2-.08(4)(a);
(II) Updating of Schedule A of the trust
agreement (see
335-14-2-.08(12)(a))
to show current cost estimates;
(III) Annual valuations as required by the
trust agreement; and
(IV) Notices
of nonpayment as required by the trust agreement.
4. The bond must guarantee that
the owner or operator will:
(i) Fund the
standby trust fund in an amount equal to the penal sum of the bond before loss
of the exclusion under
335-14-2-.01(4)(a)24;
or
(ii) Fund the standby trust fund
in an amount equal to the penal sum within 15 days after an administrative
order to begin closure issued by the Department becomes final, or within 15
days after an order to begin closure is issued by a U.S. district court or
other court of competent jurisdiction; or
(iii) Provide alternate financial assurance
as specified in
335-14-2-.08(4),
and obtain the Department's written approval of the assurance provided, within
90 days after receipt by both the owner or operator and the Department of a
notice of cancellation of the bond from the surety.
5. Under the terms of the bond, the surety
will become liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond.
6. The penal sum of the bond must be in an
amount at least equal to the current cost estimate, except as provided in
335-14-2-.08(4)(f).
7. Whenever the current cost estimate
increases to an amount greater than the penal sum, the owner or operator,
within 60 days after the increase, must either cause the penal sum to be
increased to an amount at least equal to the current cost estimate and submit
evidence of such increase to the Department, or obtain other financial
assurance as specified in
335-14-2-.08(4)
to cover the increase. Whenever the current cost estimate decreases, the penal
sum may be reduced to the amount of the current cost estimate following written
approval by the Department.
8.
Under the terms of the bond, the surety may cancel the bond by sending notice
of cancellation by certified mail to the owner or operator 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 owner or
operator and the Department, as evidenced by the return receipts.
9. The owner or operator may cancel the bond
if the Department has given prior written consent based on his receipt of
evidence of alternate financial assurance as specified in
335-14-2-.08(4).
(c) Letter of credit.
1. An owner or operator may satisfy the
requirements of
335-14-2-.08(4)
by obtaining an irrevocable standby letter of credit which conforms to the
requirements of
335-14-2-.08(4)(c)
and submitting the letter to the Department. The issuing institution must be an
entity which has the authority to issue letters of credit and whose
letter-of-credit operations are regulated and examined by a Federal or State
agency.
2. The wording of the
letter of credit must be identical to the wording specified in
335-14-2-.08(12)(c).
3. An owner or operator who uses a letter of
credit to satisfy the requirements of
335-14-2-.08(4)
must also establish a standby trust fund. Under the terms of the letter of
credit, all amounts paid pursuant to a draft by the Department will be
deposited by the issuing institution directly into the standby trust fund in
accordance with instructions from the Department. This standby trust fund must
meet the requirements of the trust fund specified in
335-14-2-.08(4)(a),
except that:
(i) An originally signed
duplicate of the trust agreement must be submitted to the Department with the
letter of credit; and
(ii) Unless
the standby trust fund is funded pursuant to the requirements of
335-14-2-.08(4),
the following are not required by these regulations:
(I) Payments into the trust fund as specified
in
335-14-2-.08(4)(a);
(II) Updating of Schedule A of the trust
agreement (see
335-14-2-.08(12)(a))
to show current cost estimates;
(III) Annual valuations as required by the
trust agreement; and
(IV) Notices
of nonpayment as required by the trust agreement.
4. The letter of credit must be
accompanied by a letter from the owner or operator referring to the letter of
credit by number, issuing institution, and date, and providing the following
information: The EPA Identification Number (if any issued), name, and address
of the facility, and the amount of funds assured for the facility by the letter
of credit.
5. The letter of credit
must be irrevocable and issued for a period of at least 1 year. The letter of
credit must provide that the expiration date will be automatically extended for
a period of at least 1 year unless, at least 120 days before the current
expiration date, the issuing institution notifies both the owner or operator
and the Department by certified mail of a decision not to extend the expiration
date. Under the terms of the letter of credit, the 120 days will begin on the
date when both the owner or operator and the Department have received the
notice, as evidenced by the return receipts.
6. The letter of credit must be issued in an
amount at least equal to the current cost estimate, except as provided in
335-14-2-.08(4)(f).
7. Whenever the current cost estimate
increases to an amount greater than the amount of the credit, the owner or
operator, within 60 days after the increase, must either cause the amount of
the credit to be increased so that it at least equals the current cost estimate
and submit evidence of such increase to the Department, or obtain other
financial assurance as specified in
335-14-2-.08(4)
to cover the increase. Whenever the current cost estimate decreases, the amount
of the credit may be reduced to the amount of the current cost estimate
following written approval by the Department.
8. Following a determination by the
Department that the hazardous secondary materials do not meet the conditions of
the exclusion under
335-14-2-.01(4)(a)24.,
the Department may draw on the letter of credit.
9. If the owner or operator does not
establish alternate financial assurance as specified in
335-14-2-.08(4)
and obtain written approval of such alternate assurance from the Department
within 90 days after receipt by both the owner or operator and the Department
of a notice from the issuing institution that it has decided not to extend the
letter of credit beyond the current expiration date, the Department will draw
on the letter of credit. The Department may delay the drawing if the issuing
institution grants an extension of the term of the credit. During the last 30
days of any such extension the Department will draw on the letter of credit if
the owner or operator has failed to provide alternate financial assurance as
specified in
335-14-2-.08(4)
and obtain written approval of such assurance from the Department.
10. The Department will return the letter of
credit to the issuing institution for termination when:
(i) An owner or operator substitutes
alternate financial assurance as specified in
335-14-2-.08(4);
or
(ii) The Department releases the
owner or operator from the requirements of
335-14-2-.08 in accordance with
335-14-2-.08(4)(i).
(d) Insurance.
1. An owner or operator may satisfy the
requirements of
335-14-2-.08(4)
by obtaining insurance which conforms to the requirements of
335-14-2-.08(4)(d)
and submitting a certificate of such insurance to the Department. At a minimum,
the insurer must be licensed to transact the business of insurance, or eligible
to provide insurance as an excess or surplus lines insurer, in one or more
States.
2. The wording of the
certificate of insurance must be identical to the wording specified in
335-14-2-.08(12)(d).
3. The insurance policy must be issued for a
face amount at least equal to the current cost estimate, except as provided in
335-14-2-.08(4)(f).
The term "face amount" means the total amount the insurer is obligated to pay
under the policy. Actual payments by the insurer will not change the face
amount, although the insurer's future liability will be lowered by the amount
of the payments.
4. The insurance
policy must guarantee that funds will be available whenever needed to pay the
cost of removal of all hazardous secondary materials from the unit, to pay the
cost of decontamination of the unit, to pay the costs of the performance of
activities required under
335-14-5-.07 or
335-14-6-.07, as applicable, for
the facilities covered by this policy. The policy must also guarantee that once
funds are needed, the insurer will be responsible for paying out funds, up to
an amount equal to the face amount of the policy, upon the direction of the
Department, to such party or parties as the Department specifies.
5. After beginning partial or final closure
under 335-14-5 or 335-14-6, as applicable, an owner or operator or any other
authorized person may request reimbursements for closure expenditures by
submitting itemized bills to the Department. The owner or operator may request
reimbursements only if the remaining value of the policy is sufficient to cover
the maximum costs of closing the facility over its remaining operating life.
Within 60 days after receiving bills for closure activities, the Department
will instruct the insurer to make reimbursements in such amounts as the
Department specifies in writing if the Department determines that the
expenditures are in accordance with the approved plan or otherwise justified.
If the Department has reason to believe that the maximum cost over the
remaining life of the facility will be significantly greater than the face
amount of the policy, he may withhold reimbursement of such amounts as he deems
prudent until he determines, in accordance with
335-14-2-.08(4)(h),
that the owner or operator is no longer required to maintain financial
assurance for the particular facility. If the Department does not instruct the
insurer to make such reimbursements, he will provide to the owner or operator a
detailed written statement of reasons.
6. The owner or operator must maintain the
policy in full force and effect until the Department consents to termination of
the policy by the owner or operator as specified in
335-14-2-.08(4)(i)10.
Failure to pay the premium, without substitution of alternate financial
assurance as specified in
335-14-2-.08(4),
will constitute a significant violation of these regulations warranting such
remedy as the Department deems necessary. Such violation will be deemed to
begin upon receipt by the Department of a notice of future cancellation,
termination, or failure to renew due to nonpayment of the premium, rather than
upon the date of expiration.
7.
Each policy must contain a provision allowing assignment of the policy to a
successor owner or operator. Such assignment may be conditional upon consent of
the insurer, provided such consent is not unreasonably refused.
8. The policy must provide that the insurer
may not cancel, terminate, or fail to renew the policy except for failure to
pay the premium. The automatic renewal of the policy must, at a minimum,
provide the insured with the option of renewal at the face amount of the
expiring policy. If there is a failure to pay the premium, the insurer may
elect to cancel, terminate, or fail to renew the policy by sending notice by
certified mail to the owner or operator and the Department. Cancellation,
termination, or failure to renew may not occur, however, during the 120 days
beginning with the date of receipt of the notice by both the Department and the
owner or operator, as evidenced by the return receipts. Cancellation,
termination, or failure to renew may not occur and the policy will remain in
full force and effect in the event that on or before the date of expiration:
(i) The Department deems the facility
abandoned; or
(ii) Conditional
exclusion or interim status is lost, terminated, or revoked; or
(iii) Closure is ordered by the Department or
a U.S. district court or other court of competent jurisdiction; or
(iv) The owner or operator is named as a
debtor in a voluntary or involuntary proceeding under Title 11 (Bankruptcy),
U.S. Code; or
(v) The premium due
is paid.
9. Whenever the
current cost estimate increases to an amount greater than the face amount of
the policy, the owner or operator, within 60 days after the increase, must
either cause the face amount to be increased to an amount at least equal to the
current cost estimate and submit evidence of such increase to the Department,
or obtain other financial assurance as specified in
335-14-2-.08(4)
to cover the increase. Whenever the current cost estimate decreases, the face
amount may be reduced to the amount of the current cost estimate following
written approval by the Department.
10. The Department will give written consent
to the owner or operator that he may terminate the insurance policy when:
(i) An owner or operator substitutes
alternate financial assurance as specified in
335-14-2-.08(4);
or
(ii) The Department releases the
owner or operator from the requirements of
335-14-2-.08(4)
in accordance with
335-14-2-.08(4)(i).
(e) Financial test and corporate
guarantee.
1. An owner or operator may
satisfy the requirements of
335-14-2-.08(4)
by demonstrating that he passes a financial test as specified in
335-14-2-.08(4)(e).
To pass this test the owner or operator must meet the criteria of either
paragraph
335-14-2-.08(4)(e)1.(i) or
(ii):
(i)
The owner or operator must have:
(I) Two of
the following three ratios: A ratio of total liabilities to net worth less than
2.0; a ratio of the sum of net income plus depreciation, depletion, and
amortization to total liabilities greater than 0.1; and a ratio of current
assets to current liabilities greater than 1.5; and
(II) Net working capital and tangible net
worth each at least six times the sum of the current cost estimates and the
current plugging and abandonment cost estimates; and
(III) Tangible net worth of at least $10
million; and
(IV) Assets located in
the United States amounting to at least 90 percent of total assets or at least
six times the sum of the current cost estimates and the current plugging and
abandonment cost estimates.
(ii) The owner or operator must have:
(I) 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
(II) Tangible net worth at least six times
the sum of the current cost estimates and the current plugging and abandonment
cost estimates; and
(III) Tangible
net worth of at least $10 million; and
(IV) Assets located in the United States
amounting to at least 90 percent of total assets or at least six times the sum
of the current cost estimates and the current plugging and abandonment cost
estimates.
2.
The phrase "current cost estimates" as used in
335-14-2-.08(4)(e)1.
refers to the cost estimates required to be shown in paragraphs 1-4 of the
letter from the owner's or operator's chief financial officer (
335-14-2-.08(12)(e)).
The phrase "current plugging and abandonment cost estimates" as used in
335-14-2-.08(4)(e)1.
refers to the cost estimates required to be shown in paragraphs 1- 4 of the
letter from the owner's or operator's chief financial officer (40 CFR
144.70(f)).
3. To demonstrate that he meets this test,
the owner or operator must submit the following items to the Department:
(i) A letter signed by the owner's or
operator's chief financial officer and worded as specified in
335-14-2-.08(12)(e);
and
(ii) A copy of the independent
certified public accountant's report on examination of the owner's or
operator's financial statements for the latest completed fiscal year;
and
(iii) If the chief financial
officer's letter providing evidence of financial assurance includes financial
data showing that the owner or operator satisfies
335-14-2-.08(4)(e)1.(i)
that are different from the data in the audited financial statements referred
to in
335-14-2-.08(4)(e)3.(ii)
or any other audited financial statement or data filed with the SEC, then a
special report from the owner's or operator's independent certified public
accountant to the owner or operator is required. The special report shall be
based upon an agreed upon procedures engagement in accordance with professional
auditing standards and shall describe the procedures performed in comparing the
data in the chief financial officer's letter derived from the independently
audited, year end financial statements for the latest fiscal year with the
amounts in such financial statements, the findings of the comparison, and the
reasons for any differences.
4. The owner or operator may obtain an
extension of the time allowed for submission of the documents specified in
335-14-2-.08(4)(e)3.
if the fiscal year of the owner or operator ends during the 90 days prior to
the effective date of these regulations and if the year end financial
statements for that fiscal year will be audited by an independent certified
public accountant. The extension will end no later than 90 days after the end
of the owner's or operator's fiscal year. To obtain the extension, the owner's
or operator's chief financial officer must send, by the effective date of these
regulations, a letter to the Department. This letter from the chief financial
officer must:
(i) Request the
extension;
(ii) Certify that he has
grounds to believe that the owner or operator meets the criteria of the
financial test;
(iii) Specify for
each facility to be covered by the test the EPA Identification Number (if any
issued), name, address, and current cost estimates to be covered by the
test;
(iv) Specify the date ending
the owner's or operator's last complete fiscal year before the effective date
of these regulations;
(v) Specify
the date, no later than 90 days after the end of such fiscal year, when he will
submit the documents specified in
335-14-2-.08(4)(e)3;
and
(vi) Certify that the year end
financial statements of the owner or operator for such fiscal year will be
audited by an independent certified public accountant.
5. After the initial submission of items
specified in
335-14-2-.08(4)(e)3,
the owner or operator 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
335-14-2-.08(4)(e)3.
6. If the owner or operator no
longer meets the requirements of
335-14-2-.08(4)(e)1,
he must send notice to the Department of intent to establish alternate
financial assurance as specified in
335-14-2-.08(4).
The notice must be sent by certified mail within 90 days after the end of the
fiscal year for which the year end financial data show that the owner or
operator no longer meets the requirements. The owner or operator must provide
the alternate financial assurance within 120 days after the end of such fiscal
year.
7. The Department may, based
on a reasonable belief that the owner or operator may no longer meet the
requirements of
335-14-2-.08(4)(e)1.,
require reports of financial condition at any time from the owner or operator
in addition to those specified in
335-14-2-.08(4)(e)3.
If the Department finds, on the basis of such reports or other information,
that the owner or operator no longer meets the requirements of
335-14-2-.08(4)(e)1.,
the owner or operator must provide alternate financial assurance as specified
in
335-14-2-.08(4)
within 30 days after notification of such a finding.
8. 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 examination of the owner's or
operator's financial statements (see
335-14-2-.08(4)(e)3(ii)).
An adverse opinion or a disclaimer of opinion will be cause for disallowance.
The Department will evaluate other qualifications on an individual basis. The
owner or operator must provide alternate financial assurance as specified in
335-14-2-.08(4)
within 30 days after notification of the disallowance.
9. The owner or operator is no longer
required to submit the items specified in
335-14-2-.08(4)(e)3.
when:
(i) An owner or operator substitutes
alternate financial assurance as specified in
335-14-2-.08(4);
or
(ii) The Department releases the
owner or operator from the requirements of
335-14-2-.08(4)
in accordance with
335-14-2-.08(4)(i).
10. An owner or operator may meet the
requirements of
335-14-2-.08(4)
by obtaining a written guarantee. The guarantor must be the direct or
higher-tier parent corporation of the owner or operator, a firm whose parent
corporation is also the parent corporation of the owner or operator, or a firm
with a "substantial business relationship" with the owner or operator. The
guarantor must meet the requirements for owners or operators in
335-14-2-.08(4)(e)1.
through 8. and must comply with the terms of the guarantee. The wording of the
guarantee must be identical to the wording specified in
335-14-2-.08(12)(g)1.
A certified copy of the guarantee must accompany the items sent to the
Department as specified in
335-14-2-.08(4)(e)3.
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 owner or operator, the letter must describe the value received in
consideration of the guarantee. If the guarantor is a firm with a "substantial
business relationship" with the owner or operator, this letter must describe
this "substantial business relationship" and the value received in
consideration of the guarantee. The terms of the guarantee must provide that:
(i) Following a determination by the
Department that the hazardous secondary materials at the owner or operator's
facility covered by this guarantee do not meet the conditions of the exclusion
under
335-14-2-.01(4)(a)24.,
the guarantor will dispose of any hazardous secondary material as hazardous
waste and close the facility in accordance with closure requirements found in
335-14-5 or 335-14-6, as applicable, or establish a trust fund as specified in
335-14-2-.08(4)(a)
in the name of the owner or operator in the amount of the current cost
estimate.
(ii) The corporate
guarantee will remain in force unless the guarantor sends notice of
cancellation by certified mail to the owner or operator 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 owner or operator and the
Department, as evidenced by the return receipts.
(iii) If the owner or operator fails to
provide alternate financial assurance as specified in
335-14-2-.08(4)
and obtain the written approval of such alternate assurance from the Department
within 90 days after receipt by both the owner or operator and the Department
of a notice of cancellation of the corporate guarantee from the guarantor, the
guarantor will provide such alternate financial assurance in the name of the
owner or operator.
(f) Use of multiple financial mechanisms. An
owner or operator may satisfy the requirements of
335-14-2-.08(4)
by establishing more than one financial mechanism per facility. These
mechanisms are limited to trust funds, surety bonds, letters of credit, and
insurance. The mechanisms must be as specified in
335-14-2-.08(4)(a) through
(d), except that it is the combination of
mechanisms, rather than the single mechanism, which must provide financial
assurance for an amount at least equal to the current cost estimate. If an
owner or operator uses a trust fund in combination with a surety bond or a
letter of credit, he may use the trust fund as the standby trust fund for the
other mechanisms. A single standby trust fund may be established for two or
more mechanisms. The Department may use any or all of the mechanisms to provide
for the facility.
(g) Use of a
financial mechanism for multiple facilities. An owner or operator may use a
financial assurance mechanism specified in
335-14-2-.08(4)
to meet the requirements for more than one facility. Evidence of financial
assurance submitted to the Department must include a list showing, for each
facility, the EPA Identification Number (if any issued), name, address, and the
amount of funds assured by the mechanism. The amount of funds available through
the mechanism must be no less than the sum of funds that would be available if
a separate mechanism had been established and maintained for each facility. In
directing funds available through the mechanism for any of the facilities
covered by the mechanism, the Department may direct only the amount of funds
designated for that facility, unless the owner or operator agrees to the use of
additional funds available under the mechanism.
(h) Removal and Decontamination Plan for
Release.
1. An owner or operator of a
reclamation facility or an intermediate facility who wishes to be released from
his financial assurance obligations under
335-14-2-.01(4)(a)24.(vi)(VI)
must submit a plan for removing all hazardous secondary material residues to
the Department at least 180 days prior to the date on which he expects to cease
to operate under the exclusion.
2.
The plan must include, at least:
(i) For each
hazardous secondary materials storage unit subject to financial assurance
requirements under
335-14-2-.01(4)(a)24(vi)(VI),
a description of how all excluded hazardous secondary materials will be
recycled or sent for recycling, and how all residues, contaminated containment
systems (liners, etc.), contaminated soils, subsoils, structures, and equipment
will be removed or decontaminated as necessary to protect human health and the
environment, and
(ii) A detailed
description of the steps necessary to remove or decontaminate all hazardous
secondary material residues and contaminated containment system components,
equipment, structures, and soils including, but not limited to, procedures for
cleaning equipment and removing contaminated soils, methods for sampling and
testing surrounding soils, and criteria for determining the extent of
decontamination necessary to protect human health and the environment;
and
(iii) A detailed description of
any other activities necessary to protect human health and the environment
during this timeframe, including, but not limited to, leachate collection,
run-on and run-off control, etc.; and
(iv) A schedule for conducting the activities
described which, at a minimum, includes the total time required to remove all
excluded hazardous secondary materials for recycling and decontaminate all
units subject to financial assurance under
335-14-2-.01(4)(a)24(vi)(VI)
and the time required for intervening activities which will allow tracking of
the progress of decontamination.
3. The Department will provide the owner or
operator and the public, through a newspaper notice, the opportunity to submit
written comments on the plan and request modifications to the plan no later
than 30 days from the date of the notice. He will also, in response to a
request or at his discretion, hold a public hearing whenever such a hearing
might clarify one or more issues concerning the plan. The Department will give
public notice of the hearing at least 30 days before it occurs. (Public notice
of the hearing may be given at the same time as notice of the opportunity for
the public to submit written comments, and the two notices may be combined.)
The Department will approve, modify, or disapprove the plan within 90 days of
its receipt. If the Department does not approve the plan, he shall provide the
owner or operator with a detailed written statement of reasons for the refusal
and the owner or operator must modify the plan or submit a new plan for
approval within 30 days after receiving such written statement. The Department
will approve or modify this plan in writing within 60 days. If the Department
modifies the plan, this modified plan becomes the approved plan. The Department
must assure that the approved plan is consistent with
335-14-2-.08(4)(h).
A copy of the modified plan with a detailed statement of reasons for the
modifications must be mailed to the owner or operator.
4. Within 60 days of completion of the
activities described for each hazardous secondary materials management unit,
the owner or operator must submit to the Department, by registered mail, a
certification that all hazardous secondary materials have been removed from the
unit and the unit has been decontaminated in accordance with the specifications
in the approved plan. The certification must be signed by the owner or operator
and by a qualified Professional Engineer. Documentation supporting the
Professional Engineer's certification must be furnished to the Department, upon
request, until he releases the owner or operator from the financial assurance
requirements for
335-14-2-.01(4)(a)24.(vi)(VI).
(i) Release of the owner or operator from the
requirements of
335-14-2-.08(4).
Within 60 days after receiving certifications from the owner or operator and a
qualified Professional Engineer that all hazardous secondary materials have
been removed from the facility or a unit at the facility and the facility or a
unit has been decontaminated in accordance with the approved plan per
335-14-2-.08(4)(h),
the Department will notify the owner or operator in writing that he is no
longer required under
335-14-2-.01(4)(a)24(vi)(VI)
to maintain financial assurance for that facility or a unit at the facility,
unless the Department has reason to believe that all hazardous secondary
materials have not been removed from the facility or unit at a facility or that
the facility or unit has not been decontaminated in accordance with the
approved plan. The Department shall provide the owner or operator a detailed
written statement of any such reason to believe that all hazardous secondary
materials have not been removed from the unit or that the unit has not been
decontaminated in accordance with the approved plan.
(8)
Liability
requirements.
(a)
Coverage for sudden accidental occurrences An owner or operator of a hazardous
secondary material reclamation facility or an intermediate facility subject to
financial assurance requirements under
335-14-2-.01(4)(a)24(vi)(VI),
or a group of such facilities, must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden accidental
occurrences arising from operations of the facility or group of facilities. The
owner or operator must have and maintain liability coverage for sudden
accidental occurrences in the amount of at least $1 million per occurrence with
an annual aggregate of at least $2 million, exclusive of legal defense costs.
This liability coverage may be demonstrated as specified in
335-14-2-.08(8)(a)1,
2, 3, 4, 5, or 6:
1. An owner or operator may
demonstrate the required liability coverage by having liability insurance as
specified in
335-14-2-.08(8)(a).
(i) Each insurance policy must be amended by
attachment of the Hazardous Secondary Material Facility Liability Endorsement,
or evidenced by a Certificate of Liability Insurance. The wording of the
endorsement must be identical to the wording specified in
335-14-2-.08(12)(h).
The wording of the certificate of insurance must be identical to the wording
specified in
335-14-2-.08(12)(i).
The owner or operator must submit a signed duplicate original of the
endorsement or the certificate of insurance to the Department. If requested by
a Department, the owner or operator must provide a signed duplicate original of
the insurance policy.
(ii) Each
insurance policy must be issued by an insurer which, at a minimum, is licensed
to transact the business of insurance, or eligible to provide insurance as an
excess or surplus lines insurer, in one or more States.
2. An owner or operator may meet the
requirements of
335-14-2-.08(8)(b)
by passing a financial test or using the guarantee for liability coverage as
specified in
335-14-2-.08(8)(f) and
(g).
3. An owner or operator may meet the
requirements of
335-14-2-.08(8)(b)
by obtaining a letter of credit for liability coverage as specified in
335-14-2-.08(8)(h).
4. An owner or operator may meet the
requirements of
335-14-2-.08(8)(b)
by obtaining a surety bond for liability coverage as specified in
335-14-2-.08(8)(i).
5. An owner or operator may meet the
requirements of
335-14-2-.08(8)(b)
by obtaining a trust fund for liability coverage as specified in
335-14-2-.08(8)(j).
6. An owner or operator may demonstrate the
required liability coverage through the use of combinations of insurance,
financial test, guarantee, letter of credit, surety bond, and trust fund,
except that the owner or operator may not combine a financial test covering
part of the liability coverage requirement with a guarantee unless the
financial statement of the owner or operator is not consolidated with the
financial statement of the guarantor. The amounts of coverage demonstrated must
total at least the minimum amounts required by
335-14-2-.08(8)(b).
If the owner or operator demonstrates the required coverage through the use of
a combination of financial assurances under this
335-14-2-.08(8)(a),
the owner or operator shall specify at least one such assurance as "primary"
coverage and shall specify other assurance as "excess" coverage.
7. An owner or operator shall notify the
Department in writing within 30 days whenever:
(i) A claim results in a reduction in the
amount of financial assurance for liability coverage provided by a financial
instrument authorized in
335-14-2-.08(8)(a)1.
through 6; or
(ii) A Certification
of Valid Claim for bodily injury or property damages caused by a sudden or
non-sudden accidental occurrence arising from the operation of a hazardous
secondary material reclamation facility or intermediate facility is entered
between the owner or operator and third-party claimant for liability coverage
under
335-14-2-.08(8)(a)1.
through 6.; or
(iii) A final court
order establishing a judgment for bodily injury or property damage caused by a
sudden or non-sudden accidental occurrence arising from the operation of a
hazardous secondary material reclamation facility or intermediate facility is
issued against the owner or operator or an instrument that is providing
financial assurance for liability coverage under
335-14-2-.08(8)(a)1.
through 6.
(b)
Coverage for non-sudden accidental occurrences. An owner or operator of a
hazardous secondary material reclamation facility or intermediate facility with
land-based units, as defined in
335-14-1-.02(1),
which are used to manage hazardous secondary materials excluded under
335-14-2-.01(4)(a)24.
or a group of such facilities, must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by non-sudden
accidental occurrences arising from operations of the facility or group of
facilities. The owner or operator must have and maintain liability coverage for
non-sudden accidental occurrences in the amount of at least $3 million per
occurrence with an annual aggregate of at least $6 million, exclusive of legal
defense costs. An owner or operator who must meet the requirements of
335-14-2-.08 may combine the
required per-occurrence coverage levels for sudden and non-sudden accidental
occurrences into a single peroccurrence level, and combine the required annual
aggregate coverage levels for sudden and non-sudden accidental occurrences into
a single annual aggregate level. Owners or operators who combine coverage
levels for sudden and nonsudden accidental occurrences must maintain liability
coverage in the amount of at least $4 million per occurrence and $8 million
annual aggregate. This liability coverage may be demonstrated as specified in
335-14-2-.08(8)(b)1.,
2., 3., 4., 5., or 6.:
1. An owner or
operator may demonstrate the required liability coverage by having liability
insurance as specified in
335-14-2-.08(8)(b).
(i) Each insurance policy must be amended by
attachment of the Hazardous Secondary Material Facility Liability Endorsement
or evidenced by a Certificate of Liability Insurance. The wording of the
endorsement must be identical to the wording specified in
335-14-2-.08(12)(h).
The wording of the certificate of insurance must be identical to the wording
specified in
335-14-2-.08(12)(i).
The owner or operator must submit a signed duplicate original of the
endorsement or the certificate of insurance to the Department. If requested by
the Department, the owner or operator must provide a signed duplicate original
of the insurance policy.
(ii) Each
insurance policy must be issued by an insurer which, at a minimum, is licensed
to transact the business of insurance, or eligible to provide insurance as an
excess or surplus lines insurer, in one or more States.
2. An owner or operator may meet the
requirements of
335-14-2-.08(8)
by passing a financial test or using the guarantee for liability coverage as
specified in
335-14-2-.08(12)(f) and
(g).
3. An owner or operator may meet the
requirements of
335-14-2-.08(8)
by obtaining a letter of credit for liability coverage as specified in
335-14-2-.08(8)(h).
4. An owner or operator may meet the
requirements of
335-14-2-.08(8)
by obtaining a surety bond for liability coverage as specified in
335-14-2-.08(8)(i).
5. An owner or operator may meet the
requirements of
335-14-2-.08(8)
by obtaining a trust fund for liability coverage as specified in
335-14-2-.08(8)(j).
6. An owner or operator may demonstrate the
required liability coverage through the use of combinations of insurance,
financial test, guarantee, letter of credit, surety bond, and trust fund,
except that the owner or operator may not combine a financial test covering
part of the liability coverage requirement with a guarantee unless the
financial statement of the owner or operator is not consolidated with the
financial statement of the guarantor. The amounts of coverage demonstrated must
total at least the minimum amounts required by
335-14-2-.08(8).
If the owner or operator demonstrates the required coverage through the use of
a combination of financial assurances under
335-14-2-.08(8)(b),
the owner or operator shall specify at least one such assurance as "primary"
coverage and shall specify other assurance as "excess" coverage.
7. An owner or operator shall notify the
Department in writing within 30 days whenever:
(i) A claim results in a reduction in the
amount of financial assurance for liability coverage provided by a financial
instrument authorized in
335-14-2-.08(8)(b)1.
through 6.; or
(ii) A Certification
of Valid Claim for bodily injury or property damages caused by a sudden or
non-sudden accidental occurrence arising from the operation of a hazardous
secondary material treatment and/or storage facility is entered between the
owner or operator and third-party claimant for liability coverage under
335-14-2-.08(8)(b)1.
through 6.; or
(iii) A final court
order establishing a judgment for bodily injury or property damage caused by a
sudden or non-sudden accidental occurrence arising from the operation of a
hazardous secondary material treatment and/or storage facility is issued
against the owner or operator or an instrument that is providing financial
assurance for liability coverage under
335-14-2-.08(8)(b)1.
through 6.
(c)
Request for variance If an owner or operator can demonstrate to the
satisfaction of the Department that the levels of financial responsibility
required by
335-14-2-.08(8)(a) or
(b) are not consistent with the degree and
duration of risk associated with treatment and/or storage at the facility or
group of facilities, the owner or operator may obtain a variance from the
Department. The request for a variance must be submitted in writing to the
Department. If granted, the variance will take the form of an adjusted level of
required liability coverage, such level to be based on the Department's
assessment of the degree and duration of risk associated with the ownership or
operation of the facility or group of facilities. The Department may require an
owner or operator who requests a variance to provide such technical and
engineering information as is deemed necessary by the Department to determine a
level of financial responsibility other than that required by
335-14-2-.08(8)(a) or
(b).
(d) Adjustments by the Department If the
Department determines that the levels of financial responsibility required by
335-14-2-.08(8)(a) or
(b) are not consistent with the degree and
duration of risk associated with treatment and/or storage at the facility or
group of facilities, the Department may adjust the level of financial
responsibility required under
335-14-2-.08(8)(a) or
(b) as may be necessary to protect human
health and the environment. This adjusted level will be based on the
Department's assessment of the degree and duration of risk associated with the
ownership or operation of the facility or group of facilities. In addition, if
the Department determines that there is a significant risk to human health and
the environment from non-sudden accidental occurrences resulting from the
operations of a facility that is not a surface impoundment, pile, or land
treatment facility, he may require that an owner or operator of the facility
comply with
335-14-2-.08(8)(b).
An owner or operator must furnish to the Department, within a reasonable time,
any information which the Department requests to determine whether cause exists
for such adjustments of level or type of coverage.
(e) Period of coverage Within 60 days after
receiving certifications from the owner or operator and a qualified
Professional Engineer that all hazardous secondary materials have been removed
from the facility or a unit at the facility and the facility or a unit has been
decontaminated in accordance with the approved plan per
335-14-2-.08(4)(h),
the Department will notify the owner or operator in writing that he is no
longer required under
335-14-2-.01(4)(a)24.(vi)(VI)
to maintain liability coverage for that facility or a unit at the facility,
unless the Department has reason to believe that that all hazardous secondary
materials have not been removed from the facility or unit at a facility or that
the facility or unit has not been decontaminated in accordance with the
approved plan.
(f) Financial test
for liability coverage
1. An owner or operator
may satisfy the requirements of
335-14-2-.08(8)
by demonstrating that he passes a financial test as specified in
335-14-2-.08(8)(f).
To pass this test the owner or operator must meet the criteria of
335-14-2-.08(8)(f)1.(i) or
(ii):
(i)
The owner or operator must have:
(I) Net
working capital and tangible net worth each at least six times the amount of
liability coverage to be demonstrated by this test; and
(II) Tangible net worth of at least $10
million; and
(III) Assets in the
United States amounting to either:
I. At
least 90 percent of his total assets; or
II. At least six times the amount of
liability coverage to be demonstrated by this
test.
(ii) The
owner or operator must have:
(I) 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
(II) Tangible net worth of at least $10
million; and
(III) Tangible net
worth at least six times the amount of liability coverage to be demonstrated by
this test; and
(IV) Assets in the
United States amounting to either:
I. At
least 90 percent of his total assets; or
II. At least six times the amount of
liability coverage to be demonstrated by this test.
2. The phrase "amount of
liability coverage" as used in
335-14-2-.08(8)(f)1.
refers to the annual aggregate amounts for which coverage is required under
335-14-2-.08(8)(a) and
(b) and the annual aggregate amounts for
which coverage is required under
335-14-5-.08(8)(a) and
(b) and
335-14-6-.08(8)(a) and
(b).
3. To demonstrate that he meets this test,
the owner or operator must submit the following three items to the Department:
(i) A letter signed by the owner's or
operator's chief financial officer and worded as specified in
335-14-2-.08(12)(f).
If an owner or operator is using the financial test to demonstrate both
assurance as specified by
335-14-2-.08(4)(e),
and liability coverage, he must submit the letter specified in
335-14-2-.08(12)(f)
to cover both forms of financial responsibility; a separate letter as specified
in
335-14-2-.08(12)(e)
is not required.
(ii) A copy of the
independent certified public accountant's report on examination of the owner's
or operator's financial statements for the latest completed fiscal
year.
(iii) If the chief financial
officer's letter providing evidence of financial assurance includes financial
data showing that the owner or operator satisfies
335-14-2-.08(8)(f)1.(i)
that are different from the data in the audited financial statements referred
to in
335-14-2-.08(8)(f)3.(ii)
or any other audited financial statement or data filed with the SEC, then a
special report from the owner's or operator's independent certified public
accountant to the owner or operator is required. The special report shall be
based upon an agreed upon procedures engagement in accordance with professional
auditing standards and shall describe the procedures performed in comparing the
data in the chief financial officer's letter derived from the independently
audited, year-end financial statements for the latest fiscal year with the
amounts in such financial statements, the findings of the comparison, and the
reasons for any difference.
4. The owner or operator may obtain a
one-time extension of the time allowed for submission of the documents
specified in
335-14-2-.08(8)(f)3.
if the fiscal year of the owner or operator ends during the 90 days prior to
the effective date of these regulations and if the year end financial
statements for that fiscal year will be audited by an independent certified
public accountant. The extension will end no later than 90 days after the end
of the owner's or operator's fiscal year. To obtain the extension, the owner's
or operator's chief financial officer must send, by the effective date of these
regulations, a letter to the Department. This letter from the chief financial
officer must:
(i) Request the
extension;
(ii) Certify that he has
grounds to believe that the owner or operator meets the criteria of the
financial test;
(iii) Specify for
each facility to be covered by the test the EPA Identification Number, name,
address, the amount of liability coverage and, when applicable, current closure
and post-closure cost estimates to be covered by the test;
(iv) Specify the date ending the owner's or
operator's last complete fiscal year before the effective date of these
regulations;
(v) Specify the date,
no later than 90 days after the end of such fiscal year, when he will submit
the documents specified in
335-14-2-.08(8)(f)3;
and
(vi) Certify that the year end
financial statements of the owner or operator for such fiscal year will be
audited by an independent certified public accountant.
5. After the initial submission of items
specified in
335-14-2-.08(8)(f)3.,
the owner or operator 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
335-14-2-.08(8)(f)3.
6. If the owner or operator no
longer meets the requirements of
335-14-2-.08(8)(f)1.,
he must obtain insurance, a letter of credit, a surety bond, a trust fund, or a
guarantee for the entire amount of required liability coverage as specified in
335-14-2-.08(8).
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 owner or operator no longer meets the test
requirements.
7. 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
examination of the owner's or operator's financial statements (see
335-14-2-.08(8)(f)3.(ii).
An adverse opinion or a disclaimer of opinion will be cause for disallowance.
The Department will evaluate other qualifications on an individual basis. The
owner or operator must provide evidence of insurance for the entire amount of
required liability coverage as specified in
335-14-2-.08(8)
within 30 days after notification of disallowance.
(g) Guarantee for liability coverage
1. Subject to
335-14-2-.08(8)(g)2.,
an owner or operator may meet the requirements of
335-14-2-.08(8)
by obtaining a written guarantee, hereinafter referred to as "guarantee." The
guarantor must be the direct or higher-tier parent corporation of the owner or
operator, a firm whose parent corporation is also the parent corporation of the
owner or operator, or a firm with a "substantial business relationship" with
the owner or operator. The guarantor must meet the requirements for owners or
operators in
335-14-2-.08(8)(f)1.
through 6. The wording of the guarantee must be identical to the wording
specified in
335-14-2-.08(12)(g)2.
A certified copy of the guarantee must accompany the items sent to the
Department as specified in
335-14-2-.08(8)(f)3.
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 owner or operator, 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 owner or operator, this letter must describe
this "substantial business relationship" and the value received in
consideration of the guarantee.
(i) If the
owner or operator fails to satisfy a judgment based on a determination of
liability for bodily injury or property damage to third parties caused by
sudden or non-sudden accidental occurrences (or both as the case may be),
arising from the operation of facilities covered by this corporate guarantee,
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.
(ii)
[Reserved].
2.
(i) In
the case of corporations incorporated in the United States, a guarantee may be
used to satisfy the requirements of
335-14-2-.08(8)
only if the Attorneys General or Insurance Commissioners of:
(I) The State in which the guarantor is
incorporated; and
(II) Each State
in which a facility covered by the guarantee is located have submitted a
written statement to the Department that a guarantee executed as described in
335-14-2-.08(8)
and
335-14-2-.08(12)(g)2.
is a legally valid and enforceable obligation in that
State.
(ii) In the case
of corporations incorporated outside the United States, a guarantee may be used
to satisfy the requirements of
335-14-2-.08(8)
only if:
(I) The non-U.S. corporation has
identified a registered agent for service of process in each State in which a
facility covered by the guarantee is located and in the State in which it has
its principal place of business; and if
(II) The Attorney General or Insurance
Commissioner of each State in which a facility covered by the guarantee is
located and the State in which the guarantor corporation has its principal
place of business, has submitted a written statement to the Department that a
guarantee executed as described in
335-14-2-.08(8)
and
335-14-2-.08(12)(g)2.
is a legally valid and enforceable obligation in that
State.
(h) Letter of credit for liability coverage.
1. An owner or operator may satisfy the
requirements of
335-14-2-.08(8)
by obtaining an irrevocable standby letter of credit that conforms to the
requirements of
335-14-2-.08(8)(h)
and submitting a copy of the letter of credit to the Department.
2. The financial institution issuing the
letter of credit must be an entity that has the authority to issue letters of
credit and whose letter of credit operations are regulated and examined by a
Federal or State agency.
3. The
wording of the letter of credit must be identical to the wording specified in
335-14-2-.08(12)(j).
4. An owner or operator who uses a letter of
credit to satisfy the requirements of
335-14-2-.08(8)
may also establish a standby trust fund. Under the terms of such a letter of
credit, all amounts paid pursuant to a draft by the trustee of the standby
trust will be deposited by the issuing institution into the standby trust in
accordance with instructions from the trustee. The trustee of the standby trust
fund must be an entity which has the authority to act as a trustee and whose
trust operations are regulated and examined by a Federal or State
agency.
5. The wording of the
standby trust fund must be identical to the wording specified in
335-14-2-.08(12)(m).
(i) Surety bond for liability
coverage
1. An owner or operator may satisfy
the requirements of
335-14-2-.08(8)
by obtaining a surety bond that conforms to the requirements of
335-14-2-.08(8)(i)
and submitting a copy of the bond to the Department.
2. The surety company issuing the bond must
be among those listed as acceptable sureties on Federal bonds in the most
recent Circular 570 of the U.S. Department of the Treasury.
3. The wording of the surety bond must be
identical to the wording specified in
335-14-2-.08(12)(k).
4. A surety bond may be used to satisfy the
requirements of
335-14-2-.08(8)
only if the Attorneys General or Insurance Commissioners of:
(i) The State in which the surety is
incorporated; and
(ii) Each State
in which a facility covered by the surety bond is located have submitted a
written statement to the Department that a surety bond executed as described in
335-14-2-.08(8)
and
335-14-2-.08(12)(k)
is a legally valid and enforceable obligation in that
State.
(j)
Trust fund for liability coverage.
1. An
owner or operator may satisfy the requirements of
335-14-2-.08(8)
by establishing a trust fund that conforms to the requirements of
335-14-2-.08(8)(j)
and submitting an originally signed duplicate of the trust agreement to the
Department.
2. The trustee must be
an entity which has the authority to act as a trustee and whose trust
operations are regulated and examined by a Federal or State agency.
3. 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
335-14-2-.08(8).
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 owner or operator, by the anniversary date of the establishment of the
Fund, must either add sufficient funds to the trust fund to cause its value to
equal the full amount of liability coverage to be provided, or obtain other
financial assurance as specified in
335-14-2-.08(8)
to cover the difference. "The full amount of the liability coverage to be
provided" means the amount of coverage for sudden and/ or non-sudden
occurrences required to be provided by the owner or operator by
335-14-2-.08(8),
less the amount of financial assurance for liability coverage that is being
provided by other financial assurance mechanisms being used to demonstrate
financial assurance by the owner or operator.
4. The wording of the trust fund must be
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(1).
(12)
Wording of the
instruments.
(a)
1. A trust agreement for a trust fund, as
specified in ADEM Admin. Code r.
335-14-2-.08(4)(a)
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Trust Agreement
Trust Agreement, the "Agreement," entered into as of [date]
by and between [name of the owner or operator], a [name of State] [insert
"corporation," "partnership," "association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert "incorporated in the State
of _________" or "a national bank"], the "Trustee."
Whereas, the Alabama Department of Environmental Management,
"the Department," an agency of the State of Alabama, has established certain
regulations applicable to the Grantor, requiring that an owner or operator of a
facility regulated under ADEM Admin. Code r. 335-14-5, or 335-14-6, or
satisfying the conditions of the exclusion under ADEM Admin. Code r.
335-14-2-.01(4)(a)24.
shall provide assurance that funds will be available if needed for care of the
facility under ADEM Admin. Code r.
335-14-5-.07 or
335-14-6-.07, as
applicable,
Whereas, the Grantor has elected to establish a trust to
provide all or part of such financial assurance for the facilities identified
herein,
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee,
Now, Therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions. As
used in this Agreement:
(a) The term
"Grantor" means the owner or operator who enters into this Agreement and any
successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who
enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities and
Cost Estimates. This Agreement pertains to the facilities and cost estimates
identified on attached Schedule A [on Schedule A, for each facility list the
EPA Identification Number (if available), name, address, and the current cost
estimates, or portions thereof, for which financial assurance is demonstrated
by this Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a trust
fund, the "Fund," for the benefit of the Department in the event that the
hazardous secondary materials of the Grantor no longer meet the conditions of
the exclusion under ADEM Admin. Code r.
335-14-2-.01(4)(a)24.
The Grantor and the Trustee intend that no third party have access to the Fund
except as herein provided. The Fund is established initially as consisting of
the property, which is acceptable to the Trustee, described in Schedule B
attached hereto. Such property and any other property subsequently transferred
to the Trustee is referred to as the Fund, together with all earnings and
profits thereon, less any payments or distributions made by the Trustee
pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as
hereinafter provided. The Trustee shall not be responsible nor shall it
undertake any responsibility for the amount or adequacy of, nor any duty to
collect from the Grantor, any payments necessary to discharge any liabilities
of the Grantor established by the Department.
Section 4. Payments from the Fund. The
Trustee shall make payments from the Fund as the Department shall direct, in
writing, to provide for the payment of the costs of the performance of
activities required under ADEM Admin. Code r.
335-14-5-.07 or
335-14-6-.07 for the facilities
covered by this Agreement. The Trustee shall reimburse the Grantor or other
persons as specified by the Department from the Fund for expenditures for such
activities in such amounts as the beneficiary shall direct in writing. In
addition, the Trustee shall refund to the Grantor such amounts as the
Department specifies in writing. Upon refund, such funds shall no longer
constitute part of the Fund as defined herein.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of cash or securities
acceptable to the Trustee.
Section
6. Trustee Management. The Trustee shall invest and reinvest the
principal and income of the Fund and keep the Fund invested as a single fund,
without distinction between principal and income, in accordance with general
investment policies and guidelines which the Grantor may communicate in writing
to the Trustee from time to time, subject, however, to the provisions of
335-14-2-.08. In investing,
reinvesting, exchanging, selling, and managing the Fund, the Trustee shall
discharge his duties with respect to the trust fund solely in the interest of
the beneficiary and with the care, skill, prudence, and diligence under the
circumstances then prevailing which persons of prudence, acting in a like
capacity and familiar with such matters, would use in the conduct of an
enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended,
15 U.S.C.
80a-2.(a), shall not be acquired or held,
unless they are securities or other obligations of the Federal or a State
government;
(ii) The Trustee is
authorized to invest the Fund in time or demand deposits of the Trustee, to the
extent insured by an agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The
Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common, commingled, or collective trust fund
created by the Trustee in which the Fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company Act of 1940,
15 U.S.C. et seq.80a-1, including
one which may be created, managed, underwritten, or to which investment advice
is rendered or the shares of which are sold by the Trustee. The Trustee may
vote such shares in its discretion.
Section 8. Express Powers of Trustee. Without
in any way limiting the powers and discretions conferred upon the Trustee by
the other provisions of this Agreement or by law, the Trustee is expressly
authorized and empowered:
(a) To sell,
exchange, convey, transfer, or otherwise dispose of any property held by it, by
public or private sale. No person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the validity or
expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and
deliver any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the powers herein
granted;
(c) To register any
securities held in the Fund in its own name or in the name of a nominee and to
hold any security in bearer form or in book entry, or to combine certificates
representing such securities with certificates of the same issue held by the
Trustee in other fiduciary capacities, or to deposit or arrange for the deposit
of such securities in a qualified central depositary even though, when so
deposited, such securities may be merged and held in bulk in the name of the
nominee of such depositary with other securities deposited therein by another
person, or to deposit or arrange for the deposit of any securities issued by
the United States Government, or any agency or instrumentality thereof, with a
Federal Reserve bank, but the books and records of the Trustee shall at all
times show that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuation. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the Department a statement confirming the value of the Trust. Any securities in
the Fund shall be valued at market value as of no more than 60 days prior to
the anniversary date of establishment of the Fund. The failure of the Grantor
to object in writing to the Trustee within 90 days after the statement has been
furnished to the Grantor and the Department shall constitute a conclusively
binding assent by the Grantor, barring the Grantor from asserting any claim or
liability against the Trustee with respect to matters disclosed in the
statement.
Section 11. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 12.
Trustee Compensation. The Trustee shall be entitled to reasonable compensation
for its services as agreed upon in writing from time to time with the
Grantor.
Section 13. Successor
Trustee. The Trustee may resign or the Grantor may replace the Trustee, but
such resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in a
writing sent to the Grantor, the Department, and the present Trustee by
certified mail 10 days before such change becomes effective. Any expenses
incurred by the Trustee as a result of any of the acts contemplated by this
Section shall be paid as provided in Section 9.
Section 14. Instructions to the Trustee. All
orders, requests, and instructions by the Grantor to the Trustee shall be in
writing, signed by such persons as are designated in the attached Exhibit A or
such other designees as the Grantor may designate by amendment to Exhibit A.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. All orders, requests,
and instructions by the Department to the Trustee shall be in writing, signed
by the Department, or its designees, and the Trustee shall act and shall be
fully protected in acting in accordance with such orders, requests, and
instructions. The Trustee shall have the right to assume, in the absence of
written notice to the contrary, that no event constituting a change or a
termination of the authority of any person to act on behalf of the Grantor or
the Department hereunder has occurred. The Trustee shall have no duty to act in
the absence of such orders, requests, and instructions from the Grantor and/or
the Department, except as provided for herein.
Section 15. Amendment of Agreement. This
Agreement may be amended by an instrument in writing executed by the Grantor,
the Trustee, and the Department, or by the Trustee and the Department if the
Grantor ceases to exist.
Section
16. Irrevocability and Termination. Subject to the right of the
parties to amend this Agreement as provided in Section 15, this Trust shall be
irrevocable and shall continue until terminated at the written agreement of the
Grantor, the Trustee, and the Department, or by the Trustee and the Department,
if the Grantor ceases to exist. Upon termination of the Trust, all remaining
trust property, less final trust administration expenses, shall be delivered to
the Grantor.
Section 17. Immunity
and Indemnification. The Trustee shall not incur personal liability of any
nature in connection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor
or the Department, issued in accordance with this Agreement. The Trustee shall
be indemnified and saved harmless by the Grantor or from the Trust Fund, or
both, from and against any personal liability to which the Trustee may be
subjected by reason of any act or conduct in its official capacity, including
all expenses reasonably incurred in its defense in the event the Grantor fails
to provide such defense.
Section
18. Choice of Law. This Agreement shall be administered,
construed, and enforced according to the laws of the State of
Alabama.
Section 19.
Interpretation. As used in this Agreement, words in the singular include the
plural and words in the plural include the singular. The descriptive headings
for each Section of this Agreement shall not affect the interpretation or the
legal efficacy of this Agreement.
In Witness Whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written:
The parties below certify that the wording of this Agreement is identical to
the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(a)1.
as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
2. The following is an example of the
certification of acknowledgment which must accompany the trust agreement for a
trust fund as specified in ADEM Admin. Code r.
335-14-2-.08(4)(a).
State of___________________________________________
County of ______________________________________
On this [date], before me personally came [owner or operator]
to me known, who, being by me duly sworn, did depose and say that she/he
resides at [address], that she/he is [title] of [corporation], the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that she/he signed her/ his name thereto by like
order.
_________________________
[Signature of Notary Public]
(b) A surety bond guaranteeing payment into a
trust fund, as specified in ADEM Admin. Code r.
335-14-2-.08(4)(b),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Financial Guarantee Bond
Date bond executed:
_____________________
Effective date:
_____________________
Principal:
_____________________
[legal name and business address of owner or operator]
Type of Organization:
_____________________
[insert "individual," "joint venture," "partnership," or
"corporation"]
State of incorporation:
_____________________
Surety(ies):
_____________________
[name(s) and business address(es)]
EPA Identification Number, name, address and amount(s) for
each facility guaranteed by this bond:
__________________________________
Total penal sum of bond:
$___________________________________________
Surety's bond number:
____________________________________
Know All Persons By These Presents, That we, the Principal
and Surety(ies) are firmly bound to the Alabama Department of Environmental
Management in the event that the hazardous secondary materials at the
reclamation or intermediate facility listed below no longer meet the conditions
of the exclusion under ADEM Admin. Code r.
335-14-2-.01(4)(a)24,
in the above penal sum for the payment of which we bind ourselves, our heirs,
executors, administrators, successors, and assigns jointly and severally;
provided that, where the Surety(ies) are corporations acting as co-sureties,
we, the Sureties, bind ourselves in such sum "jointly and severally" only for
the purpose of allowing a joint action or actions against any or all of us, and
for all other purposes each Surety binds itself, jointly and severally with the
Principal, for the payment of such sum only as is set forth opposite the name
of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the Alabama
Hazardous Wastes Management and Minimization Act of 1978 (AHWMMA), as amended,
to have a permit or interim status in order to own or operate each facility
identified above, or to meet conditions under ADEM Admin. Code r.
335-14-2-.01(4)(a)24.,
and
Whereas said Principal is required to provide financial
assurance as a condition of permit or interim status or as a condition of an
exclusion under ADEM Admin. Code r.
335-14-2-.01(4)(a)24.,
and
Whereas said Principal shall establish a standby trust fund
as is required when a surety bond is used to provide such financial
assurance;
Now, Therefore, the conditions of the obligation are such
that if the Principal shall faithfully, before the beginning of the final
closure of each facility identified above, fund the standby trust fund in the
amount(s) identified above for the facility,
Or, if the Principal shall satisfy all the conditions
established for exclusion of hazardous secondary materials from coverage as
solid waste under ADEM Admin. Code r.
335-14-2-.01(4)(a)24.,
Or, if the Principal shall fund the standby trust fund in
such amount(s) within 15 days after a final order to begin closure is issued by
the Department or a U.S. district court or other court of competent
jurisdiction,
Or, if the Principal shall provide alternate financial
assurance, as specified in ADEM Admin. Code r.
335-14-2-.08, as applicable, and
obtain the Department's written approval of such assurance, within 90 days
after the date notice of cancellation is received by both the Principal and the
Department from the Surety(ies), then this obligation shall be null and void;
otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation
only when the Principal has failed to fulfill the conditions described above.
Upon notification by the Department that the Principal has failed to perform as
guaranteed by this bond, the Surety(ies) shall place funds in the amount
guaranteed for the facility(ies) into the standby trust fund as directed by the
Department.
The liability of the Surety(ies) shall not be discharged by
any payment or succession of payments hereunder, unless and until such payment
or payments shall amount in the aggregate to the penal sum of the bond, but in
no event shall the obligation of the Surety(ies) hereunder exceed the amount of
said penal sum.
The Surety(ies) may cancel the bond by sending notice of
cancellation by certified mail to the Principal and to the Department,
provided, however, that cancellation shall not occur during the 120 days
beginning on the date of receipt of the notice of cancellation by both the
Principal and the Department, as evidenced by the return receipts.
The Principal may terminate this bond by sending written
notice to the Surety(ies), provided, however, that no such notice shall become
effective until the Surety(ies) receive(s) written authorization for
termination of the bond by the Department.
[The following paragraph is an optional rider that may be
included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal
sum of the bond yearly so that it guarantees a new amount, provided that the
penal sum does not increase by more than 20 percent in any one year, and no
decrease in the penal sum takes place without the written permission of the
Department.
In Witness Whereof, the Principal and Surety(ies) have
executed this Financial Guarantee Bond and have affixed their seals on the date
set forth above.
The persons whose signatures appear below hereby certify that
they are authorized to execute this surety bond on behalf of the Principal and
Surety(ies) and that the wording of this surety bond is identical to the
wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(b)
as such regulations were constituted on the date this bond was executed.
Principal
[Signature(s)]
__________________________________
[Name(s)]
________________________________________________
[Title(s)]
________________________________________________
[Corporate seal]
__________________________________
Corporate Surety(ies)
[Name and address]
State of incorporation:
Liability limit: $_________________________
[Signature(s)] [Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.]
Bond premium: $________________________
(c) A letter of credit, as specified in ADEM
Admin. Code r.
335-14-2-.08(4)(c),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Irrevocable Standby Letter of Credit
Director
Alabama Department of Environmental Management
Dear Sir or Madam: We hereby establish our Irrevocable
Standby Letter of Credit No._________in your favor, in the event that the
hazardous secondary materials at the covered reclamation or intermediary
facility(ies) no longer meet the conditions of the exclusion under ADEM Admin.
Code r. 335-14-2-.01(4)(a)24.,
at the request and for the account of [owner's or operator's name and address]
up to the aggregate amount of [in words] U.S. dollars $_________, 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 the Alabama Hazardous Wastes Management Act of 1978,
as amended."
This letter of credit is effective as of [date] and shall
expire on [date at least 1 year later], but such expiration date shall be
automatically extended for a period of [at least 1 year] on [date] and on each
successive expiration date, unless, at least 120 days before the current
expiration date, we notify both you and [owner's or operator's name] by
certified mail that we have decided not to extend this letter of credit beyond
the current expiration date. In the event you are 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 both you and [owner's or operator's
name], as shown on the signed return receipts.
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 deposit the amount of the draft directly into
the standby trust fund of [owner's or operator's name] in accordance with your
instructions.
We certify that the wording of this letter of credit is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(c)
as such regulations were constituted on the date shown immediately
below.
[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 and
copyrighted by the International Chamber of Commerce," or "the Uniform
Commercial Code"].
(d) A certificate of insurance, as specified
in ADEM Admin. Code r.
335-14-2-.08(4)(d),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Certificate of Insurance
Name and Address of Insurer (herein called the
"Insurer"):______________________
Name and Address of Insured (herein called the
"Insured"):_____________________
Facilities Covered: [List for each facility: The EPA
Identification Number (if any issued), name, address, and the amount of
insurance for all facilities covered, which must total the face amount shown
below.]
Face Amount:
__________________________________
Policy Number:
__________________________________
Effective Date:
__________________________________
The Insurer hereby certifies that it has issued to the
Insured the policy of insurance identified above to provide financial assurance
so that in accordance with applicable regulations all hazardous secondary
materials can be removed from the facility or any unit at the facility and the
facility or any unit at the facility can be decontaminated at the facilities
identified above. The Insurer further warrants that such policy conforms in all
respects with the requirements of ADEM Admin. Code r.
335-14-2-.08(4)(d)
as applicable and as such regulations were constituted on the date shown
immediately below. It is agreed that any provision of the policy inconsistent
with such regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the Department, the Insurer agrees to
furnish to the Department a duplicate original of the policy listed above,
including all endorsements thereon.
I hereby certify that the wording of this certificate is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(d)
such regulations were constituted on the date shown immediately below.
[Authorized signature for Insurer]
[Name of person signing]
[Title of person signing]
Signature of witness or notary:
__________________________________
[Date]
(e)
A letter from the chief financial officer, as specified in ADEM Admin. Code r.
335-14-2-.08(4)(e),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Letter From Chief Financial Officer
[Address to the Department in which facilities for which
financial responsibility is to be demonstrated through the financial test are
located].
I am the chief financial officer of [name and address of
firm]. This letter is in support of this firm's use of the financial test to
demonstrate financial assurance, as specified in ADEM Admin. Code r.
335-14-2-.08.
[Fill out the following nine paragraphs regarding facilities
and associated cost estimates. If your firm has no facilities that belong in a
particular paragraph, write "None" in the space indicated. For each facility,
include its EPA Identification Number (if any issued), name, address, and
current cost estimates.]
1. This firm
is the owner or operator of the following facilities for which financial
assurance is demonstrated through the financial test specified in ADEM Admin.
Code r.
335-14-2-.08. The current cost
estimates covered by the test are shown for each facility:
___________.
2. This firm
guarantees, through the guarantee specified in ADEM Admin. Code r.
335-14-2-.08, the following
facilities owned or operated by the guaranteed party. The current cost
estimates so guaranteed are shown for each facility: ___________.
The firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee ___________, or
(3) engaged in the following substantial
business relationship with the owner or operator __________, and receiving the
following value in consideration of this guarantee ___________]. [Attach a
written description of the business relationship or a copy of the contract
establishing such relationship to this letter].
3. In States outside of Alabama, where EPA or
some designated authority is administering the financial requirements of
subpart H of 40 CFR part
261, this firm, as owner or operator or guarantor, is
demonstrating financial assurance for the following facilities through the use
of a test equivalent or substantially equivalent to the financial test
specified in ADEM Admin. Code r.
335-14-2-.08. The current cost
estimates covered by such a test are shown for each facility:
_____________.
4. This firm is the
owner or operator of the following hazardous secondary materials management
facilities for which financial assurance is not demonstrated either to EPA, the
Department, or another authorized state through the financial test or any other
financial assurance mechanism specified in ADEM Admin. Code r.
335-14-2-.08 or equivalent or
substantially equivalent State mechanisms. The current cost estimates not
covered by such financial assurance are shown for each
facility:______________
5. This
firm is the owner or operator of the following UIC facilities for which
financial assurance for plugging and abandonment is required under part 144.
The current closure cost estimates as required by
40 CFR
144.62 are shown for each facility:
___________.
6. This firm is the
owner or operator of the following facilities for which financial assurance for
closure or post-closure care is demonstrated through the financial test
specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08. The current closure
and/or post-closure cost estimates covered by the test are shown for each
facility: ______________.
7. This
firm guarantees, through the guarantee specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08, the closure or
post-closure care of the following facilities owned or operated by the
guaranteed party. The current cost estimates for the closure or post-closure
care so guaranteed are shown for each facility: __________. The firm identified
above is [insert one or more:
(1) The direct
or higher-tier parent corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee __________; or
(3) engaged in the following substantial
business relationship with the owner or operator ________________, and
receiving the following value in consideration of this guarantee __________].
[Attach a written description of the business relationship or
a copy of the contract establishing such relationship to this letter].
8. In States where EPA
is not administering the financial requirements of subpart H of 40 CFR part
264
or
265, this firm, as owner or operator or guarantor, is demonstrating
financial assurance for the closure or post-closure care of the following
facilities through the use of a test equivalent or substantially equivalent to
the financial test specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08. The current closure
and/or post-closure cost estimates covered by such a test are shown for each
facility: __________.
9. This firm
is the owner or operator of the following hazardous waste management facilities
for which financial assurance for closure or, if a disposal facility,
postclosure care, is not demonstrated either to EPA, the Department, or another
authorized state through the financial test or any other financial assurance
mechanism specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08 or equivalent or
substantially equivalent State mechanisms. The current closure and/or
post-closure cost estimates not covered by such financial assurance are shown
for each facility: _________.
This firm [insert "is required" or "is not required"] to file
a Form 10K with the Securities and Exchange Commission (SEC) for the latest
fiscal year.
The fiscal year of this firm ends on [month, day]. The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year end financial statements for the latest
completed fiscal year, ended [date].
[Fill in Alternative I if the criteria of
335-14-2-.08(4)(e)1.(i).
Fill in Alternative II if the criteria of
335-14-2-.08(4)(e)1.(ii)
are used.]
ALTERNATIVE I
1. Sum of current cost estimates [total of
all cost estimates shown in the nine paragraphs above] $_______
2. Total liabilities [if any portion of the
cost estimates is included in total liabilities, you may deduct the amount of
that portion from this line and add that amount to lines 3 and 4]
$_______
3. Tangible net worth
$_______
4. Net worth
$_______
5. Current assets
$_______
6. Current liabilities
$_______
7. Net working capital
[line 5 minus line 6] $_______
8.
The sum of net income plus depreciation, depletion, and amortization
$_______
9. Total assets in U.S.
(required only if less than 90% of firm's assets are located in the U.S.)
$_______
10. Is line 3 at least $10
million? Yes No
11. Is line 3 at
least 6 times line 1? Yes No
12. Is
line 7 at least 6 times line 1? Yes No
13. Are at least 90% of firm's assets located
in the U.S.? If not, complete line 14. Yes No
14. Is line 9 at least 6 times line 1? Yes
No
15. Tangible net worth [if any
portion of the cost stimates is included in "total liabilities" on your firm's
financial statements, you may add the amount of that portion to this line] Yes
No
16. Is line 8 divided by line 2
greater than 0.1? Yes No
17. Is
line 5 divided by line 6 greater than 1.5? Yes No
ALTERNATIVE II
1. Sum of current cost estimates [total of
all cost estimates shown in the eight paragraphs above] $_______
2. Current bond rating of most recent
issuance of this firm and name of rating service $_______
3. Date of issuance of bond
$_______
4. Date of maturity of
bond $_______
5. Tangible net worth
[if any portion of the cost estimates is included in "total liabilities" on
your firm's financial statements, you may add the amount of that portion to
this line] $_______
6. Total assets
in U.S. (required only if less than 90% of firm's assets are located in the
U.S.) $_______
7. Is line 5 at
least $10 million? Yes No
8. Is
line 5 at least 6 times line 1? Yes No
9. Are at least 90% of the firm's assets
located in the U.S.? If not, complete line10. Yes No
10. Is line 6 at least 6 times line 1? Yes No
I hereby certify that the wording of this letter is identical
to the wording specified in ADEM Admin. Code
335-14-2-.08(12)(e)
as such regulations were constituted on the date shown immediately
below.
[Signature] ____________________
[Name] ____________________
(Title] ____________________
[Date] ____________________
(f) A letter from the chief financial
officer, as specified in ADEM Admin. Code r.
335-14-2-.08(8)(f),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted.
Letter From Chief Financial Officer
[Address to the Director, Alabama Department of Environmental
Management, P.O. Box 301463, Montgomery, Alabama 36130-1463].
I am the chief financial officer of [firm's name and
address]. This letter is in support of the use of the financial test to
demonstrate financial responsibility for liability coverage under ADEM Admin.
Code r. 335-14-2-.08(8)
[insert "and costs assured under ADEM Admin. Code r.
335-14-2-.08(4)(e)"
if applicable] as specified in ADEM Admin. Code r.
335-14-2-.08.
[Fill out the following paragraphs regarding facilities and
liability coverage. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include its
EPA Identification Number (if any issued), name, and address]. The firm
identified above is the owner or operator of the following facilities for which
liability coverage for [insert "sudden" or "non-sudden" or "both sudden and
nonsudden"] accidental occurrences is being demonstrated through the financial
test specified in ADEM Admin. Code r.
335-14-2-.08: ___________The firm
identified above guarantees, through the guarantee specified in ADEM Admin.
Code r. 335-14-2-.08, liability coverage
for [insert "sudden" or "non-sudden" or "both sudden and nonsudden"] accidental
occurrences at the following facilities owned or operated by the following:
_____________. The firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee ____________; or
(3) engaged in the following substantial
business relationship with the owner or operator ____________, and receiving
the following value in consideration of this guarantee ____________].
[Attach a written description of the business relationship or
a copy of the contract establishing such relationship to this letter.]
The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert "sudden" or
"non-sudden" or "both sudden and nonsudden"] accidental occurrences is being
demonstrated through the financial test specified ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08: __________
The firm identified above guarantees, through the guarantee
specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08, liability coverage
for [insert "sudden" or "non-sudden" or "both sudden and non-sudden"]
accidental occurrences at the following facilities owned or operated by the
following: __________.
The firm identified above is [insert one or more:
(1) The direct or higher tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee ___________; or
(3) engaged in the following substantial
business relationship with the owner or operator ___________, and receiving the
following value in consideration of this guarantee ___________].
[Attach a written description of the business relationship or
a copy of the contract establishing such relationship to this letter.]
[If you are using the financial test to demonstrate coverage
of both liability and costs assured under ADEM Admin. Code r.
335-14-2-.08(4)(e)
or closure or postclosure care costs under ADEM Admin. Code r.
335-14-5-.08(4),
335-14-5-.08(6),
335-14-6-.08(4)
or 335-14-6-.08(6),
fill in the following nine paragraphs regarding facilities and associated cost
estimates. If there are no facilities that belong in a particular paragraph,
write "None" in the space indicated. For each facility, include its EPA
identification number (if any issued), name, address, and current cost
estimates.]
1. This firm is the owner
or operator of the following facilities for which financial assurance is
demonstrated through the financial test specified in ADEM Admin. Code r.
335-14-2-.08. The current cost
estimates covered by the test are shown for each facility:
__________.
2. This firm
guarantees, through the guarantee specified in ADEM Admin. Code r.
335-14-2-.08, the following
facilities owned or operated by the guaranteed party. The current cost
estimates so guaranteed are shown for each facility: __________. The firm
identified above is
[insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee ___________, or
(3) engaged in the following substantial
business relationship with the owner or operator ___________, and receiving the
following value in consideration of this guarantee ____________]. [Attach a
written description of the business relationship or a copy of the contract
establishing such relationship to this letter].
3. In States outside of Alabama, where the
U.S. EPA or some designated authority is administering the financial
requirements of subpart H of 40 CFR part
261, this firm, as owner or operator
or guarantor, is demonstrating financial assurance for the following facilities
through the use of a test equivalent or substantially equivalent to the
financial test specified in subpart H of 40 CFR part
261. The current cost
estimates covered by such a test are shown for each facility:
____________.
4. This firm is the
owner or operator of the following hazardous secondary materials management
facilities for which financial assurance is not demonstrated to EPA, the
Department, or another authorized state through the financial test or any other
financial assurance mechanism specified in subpart H of 40 CFR part
261. The
current cost estimates not covered by such financial assurance are shown for
each facility: ____________.
5.
This firm is the owner or operator of the following UIC facilities for which
financial assurance for plugging and abandonment is required under part 144.
The current closure cost estimates as required by
40 CFR
144.62 are shown for each facility:
_____________.
6. This firm is the
owner or operator of the following facilities for which financial assurance for
closure or post-closure care is demonstrated through the financial test
specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08. The current closure
and/or post-closure cost estimates covered by the test are shown for each
facility: _____________.
7. This
firm guarantees, through the guarantee specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08, the closure or
post-closure care of the following facilities owned or operated by the
guaranteed party. The current cost estimates for the closure or post-closure
care so guaranteed are shown for each facility: ___________. The firm
identified above is [insert one or more:
(1)
The direct or higher-tier parent corporation of the owner or
operator;
(2) owned by the same
parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee __________;
or
(3) engaged in the following
substantial business relationship with the owner or operator ___________, and
receiving the following value in consideration of this guarantee ___________].
[Attach a written description of the business relationship or a copy of the
contract establishing such relationship to this letter].
8. In States outside of Alabama, where the
U.S. EPA or some designated authority is administering the financial
requirements, this firm, as owner or operator or guarantor, is demonstrating
financial assurance for the closure or post-closure care of the following
facilities through the use of a test equivalent or substantially equivalent to
the financial test specified in subpart H of 40 CFR part
264 and
265 . The
current closure and/or post-closure cost estimates covered by such a test are
shown for each facility: ___________.
9. This firm is the owner or operator of the
following hazardous waste management facilities for which financial assurance
for closure or, if a disposal facility, postclosure care, is not demonstrated
to the Department through the financial test or any other financial assurance
mechanism specified in ADEM Admin. Code r.
335-14-5-.08 and
335-14-6-.08 or equivalent. The
current closure and/or post-closure cost estimates not covered by such
financial assurance are shown for each facility: ___________. This firm [insert
"is required" or "is not required"] to file a Form 10K with the Securities and
Exchange Commission (SEC) for the latest fiscal year. The fiscal year of this
firm ends on [month, day]. The figures for the following items marked with an
asterisk are derived from this firm's independently audited, year end financial
statements for the latest completed fiscal year, ended [date]. Part A.
Liability Coverage for Accidental
Occurrences
[Fill in Alternative I if the criteria specified in
335-14-2-.08(8)(f)1.(i)
are used. Fill in Alternative II if the criteria specified in
335-14-2-.08(8)(f)1.(ii)
are used.]
ALTERNATIVE I
1. Amount of annual aggregate liability
coverage to be demonstrated $_______
2. Current assets $_______
3. Current liabilities $_______
4. Net working capital [line 2 minus line 3]
$_______
5. Tangible net worth
$_______
6. If less than 90% of
assets are located in the U.S. give total U.S. assets. $
Yes_____No_____
7. Is line 5 at
least $10 million? Yes_____No _____
8. Is line 4 at least 6 times line 1?
Yes_____No_____
9. Is line 5 at
least 6 times line 1? Yes_____No_____
10. Are at least 90% of firm's assets located
in the U.S.? If not, complete line 11. Yes_____No_____
11. Is line 6 at least 6 times line 1?
Yes_____No_____
ALTERNATIVE II
1. Amount of annual aggregate liability
coverage to be demonstrated $________
2. Current bond rating of most recent
issuance of this firm and name of rating service $________
3. Date of issuance of bond
________
4. Date of maturity of
bond ________
5. Tangible net worth
$________
6. Total assets in U.S.
(required only if less than 90% of firm's assets are located in the U.S.)
$________
7. Is line 5 at least $10
million? Yes_____No_____
8. Is line
5 at least 6 times line 1? Yes_____No_____
9. Are at least 90% of the firm's assets
located in the U.S.? If not, complete line10. Yes_____No_____
10. Is line 6 at least 6 times line 1?
Yes_____No_____
[Fill in part B if you are using the financial test to
demonstrate assurance of both liability coverage and costs assured under
335-14-2-.08(4)(e)
or closure or post-closure care costs under ADEM Admin. Code r.
335-14-5-.08(4),
335-14-5-.08(6),
335-14-6-.08(4)
or 335-14-6-.08(6).]
Part B. Facility Care and Liability Coverage
[Fill in Alternative I if the criteria of
335-14-2-.08(4)(e)1.(i)
and 335-14-2-.08(8)(f)1.(i)
are used. Fill in Alternative II if the criteria of
335-14-2-.08(4)(e)1.(ii)
and 335-14-2-.08(8)(f)1.(ii)
are used.]
ALTERNATIVE I
1. Sum of current cost estimates [total of
all cost estimates listed above] $_______
2. Amount of annual aggregate liability
coverage to be demonstrated $_______
3. Sum of lines 1 and 2 $_______
4. Total liabilities (if any portion of your
cost estimates is included in your total liabilities, you may deduct that
portion from this line and add that amount to lines 5 and 6) $_______
5. Tangible net worth $_______
6. Net worth $_______
7. Current assets $_______
8. Current liabilities $_______
9. Net working capital [line 7 minus line 8]
$_______
10. The sum of net income
plus depreciation, depletion, and amortization $_______
11. Total assets in the U.S. (required only
if less than 90% of firm's assets are located in the U.S.) $_______
12. Is line 5 at least $10 million?
Yes_____No_____
13. Is line 5 at
least 6 times line 3? Yes_____No_____
14. Is line 9 at least 6 times line 3?
Yes_____No_____
15. Are at least
90% of firm's assets located in the U.S.? If not, complete line 16.
Yes_____No_____
16. Is line 11 at
least 6 times line 3? Yes_____No_____
17. Is line 4 divided by line 6 less than
2.0? Yes_____ No_____
18. Is line
10 divided by line 4 greater than 0.1? Yes_____ No_____
19. Is line 7 divided by line 8 greater than
1.5 Yes_____ No_____
ALTERNATIVE II
1. Sum of current cost estimates [total of
all cost estimates listed above] $_______
2. Amount of annual aggregate liability
coverage to be demonstrated $_______
3. Sum of lines 1 and 2 _______
4. Current bond rating of most recent
issuance and name of rating service _______
5. Date of issuance of bond _______
6. Date of maturity of bond _______
7. Tangible net worth (if any portion of the
cost estimates is included in "total liabilities" on your financial statements
you may add that portion to this line) $_______
8. Total assets in the U.S. (required only if
less than 90% of firm's assets are located in the U.S.) $_______
9. Is line 7 at least $10 million?
Yes_____No_____
10. Is line 7 at
least 6 times line 3? Yes_____No_____
11. Are at least 90% of the firm's assets
located in the U.S.? If not, complete line 12. Yes_____No_____
12. Is line 8 at least 6 times line 3?
Yes_____No_____
I hereby certify that the wording of this letter is identical
to the wording specified in ADEM Admin. Code
335-14-2-.08(12)(f)
as such rules were constituted on the date shown immediately below.
[Signature] __________________________________________
[Name] _______________________________________________
(Title] ______________________________________________
[Date]
_______________________________________________
(g)
1. A corporate guarantee, as specified in
335-14-2-.08(4)(e),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Corporate Guarantee for Facility Care
Guarantee made this [date] by [name of guaranteeing entity],
a business corporation organized under the laws of the State of [insert name of
State], herein referred to as guarantor. This guarantee is made on behalf of
the [owner or operator] of [business address], which is [one of the following:
"our subsidiary"; "a subsidiary of [name and address of common parent
corporation], of which guarantor is a subsidiary"; or "an entity with which
guarantor has a substantial business relationship, as defined in ADEM Admin.
Code r. 335-14-5-.08(2)(h)
and 335-14-6-.08(2)(h)"
to the Alabama Department of Environmental Management.
Recitals
1. Guarantor meets or exceeds the financial
test criteria and agrees to comply with the reporting requirements for
guarantors as specified in ADEM Admin. Code r.
335-14-2-.08(4)(e).
2. [Owner or operator] owns or operates the
following facility(ies) covered by this guarantee: [List for each facility: EPA
Identification Number (if any issued), name, and address].
3. "Closure plans" as used below refer to the
plans maintained as required by ADEM Admin. Code r.
335-14-2-.08 for the care of
facilities as identified above.
4.
For value received from [owner or operator], guarantor guarantees that in the
event of a determination by the Department that the hazardous secondary
materials at the owner or operator's facility covered by this guarantee do not
meet the conditions of the exclusion under ADEM Admin. Code r.
335-14-2-.01(4)(a)24.,
the guarantor will dispose of any hazardous secondary material as hazardous
waste, and close the facility in accordance with closure requirements found in
ADEM Admin. Code r.335-14-5 or 335-14-6, as applicable, or establish a trust
fund as specified in ADEM Admin. Code r.
335-14-2-.08(4)(a)
in the name of the owner or operator in the amount of the current cost
estimate.
5. Guarantor agrees that
if, at the end of any fiscal year before termination of this guarantee, the
guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the Department and to [owner or
operator] that he intends to provide alternate financial assurance as specified
in ADEM Admin. Code r.
335-14-2-.08, as applicable, in
the name of [owner or operator]. Within 120 days after the end of such fiscal
year, the guarantor shall establish such financial assurance unless [owner or
operator] has done so.
6. The
guarantor agrees to notify the Department by certified mail, of a voluntary or
involuntary proceeding under Title 11 (Bankruptcy), U.S. Code, naming guarantor
as debtor, within 10 days after commencement of the proceeding.
7. Guarantor agrees that within 30 days after
being notified by the Department of a determination that the guarantor no
longer meets the financial test criteria or that he is disallowed from
continuing as a guarantor, he shall establish alternate financial assurance as
specified in ADEM Admin. Code r. 335-14-5, 335-14-6, or
335-14-2-.08, as applicable, in
the name of [owner or operator] unless [owner or operator] has done
so.
8. Guarantor agrees to remain
bound under this guarantee notwithstanding any or all of the following:
amendment or modification of the closure plan, the extension or reduction of
the time of performance, or any other modification or alteration of an
obligation of the owner or operator pursuant to ADEM Admin. Code r. 335-14-5,
335-14-6, or
335-14-2-.08.
9. Guarantor agrees to remain bound under
this guarantee for as long as [owner or operator] must comply with the
applicable financial assurance requirements of ADEM Admin. Code r. 335-14-5 and
335-14-6 or the financial assurance condition of ADEM Admin. Code r.
335-14-2-.01(4)(a)24.(vi)
for the above-listed facilities, except as provided in paragraph 10 of this
agreement.
10. [Insert the
following language if the guarantor is (a) a direct or higher-tier corporate
parent, or (b) a firm whose parent corporation is also the parent corporation
of the owner or operator]:
Guarantor may terminate this guarantee by sending notice by
certified mail to the Department and to [owner or operator], provided that this
guarantee may not be terminated unless and until [the owner or operator]
obtains, and the Department approves, alternate coverage complying with ADEM
Admin. Code r.335-14-2-.08(4).
[Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its "substantial business relationship" with
the owner or operator]
Guarantor may terminate this guarantee 120 days following the
receipt of notification, through certified mail, by the Department and by [the
owner or operator].
11.
Guarantor agrees that if [owner or operator] fails to provide alternate
financial assurance as specified in ADEM Admin. Code r. 335-14-5, 335-14-6, or
335-14-2-.08, as applicable, and
obtain written approval of such assurance from the Department within 90 days
after a notice of cancellation by the guarantor is received by the Department
from guarantor, guarantor shall provide such alternate financial assurance in
the name of [owner or operator].
12. Guarantor expressly waives notice of
acceptance of this guarantee by the Department or by [owner or operator].
Guarantor also expressly waives notice of amendments or modifications of the
closure plan and of amendments or modifications of the applicable requirements
of ADEM Admin. Code r. 335-14-5, 335-14-6, or
335-14-2-.08.
I hereby certify that the wording of this guarantee is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(g)1.
as such regulations were constituted on the date first above written. Effective
date:
__________________________________
[Name of guarantor]
________________________________________
[Authorized signature for guarantor]
_______________________
[Name of person signing]
___________________________________
[Title of person signing]
__________________________________
Signature of witness or notary:
____________________________
2. A guarantee, as specified in ADEM Admin.
Code r.
335-14-2-.08(8)(g),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Guarantee for Liability Coverage
Guarantee made this [date] by [name of guaranteeing entity],
a business corporation organized under the laws of [if incorporated within the
United States insert "the State of _____________" and insert name of State; if
incorporated outside the United States insert the name of the country in which
incorporated, the principal place of business within the United States, and the
name and address of the registered agent in the State of the principal place of
business], herein referred to as guarantor. This guarantee is made on behalf of
[owner or operator] of [business address], which is one of the following: "our
subsidiary;" "a subsidiary of [name and address of common parent corporation],
of which guarantor is a subsidiary;" or "an entity with which guarantor has a
substantial business relationship, as defined in ADEM Admin. Code r.
335-14-1-.02", to any and all
third parties who have sustained or may sustain bodily injury or property
damage caused by [sudden and/or non-sudden] accidental occurrences arising from
operation of the facility(ies) covered by this guarantee.
Recitals
1. Guarantor meets or exceeds the financial
test criteria and agrees to comply with the reporting requirements for
guarantors as specified in ADEM Admin. Code r.
335-14-2-.08(8)(g).
2. [Owner or operator] owns or operates the
following facility(ies) covered by this guarantee: [List for each facility: EPA
identification number (if any issued), name, and address; and if guarantor is
incorporated outside the United States list the name and address of the
guarantor's registered agent in each State.] This corporate guarantee satisfies
RCRA third-party liability requirements for [insert "sudden" or "non-sudden" or
"both sudden and non-sudden"] accidental occurrences in above-named owner or
operator facilities for coverage in the amount of [insert dollar amount] for
each occurrence and [insert dollar amount] annual aggregate.
3. For value received from [owner or
operator], guarantor guarantees to any and all third parties who have sustained
or may sustain bodily injury or property damage caused by [sudden and/or
non-sudden] accidental occurrences arising from operations of the facility(ies)
covered by this guarantee that in the event that [owner or operator] fails to
satisfy a judgment or award based on a determination of liability for bodily
injury or property damage to third parties caused by [sudden and/or non-sudden]
accidental occurrences, arising from the operation of the above-named
facilities, or fails to pay an amount agreed to in settlement of a claim
arising from or alleged to arise from such injury or damage, the guarantor will
satisfy such judgment(s), award(s) or settlement agreement(s) up to the limits
of coverage identified above.
4.
Such obligation does not apply to any of the following:
(a) Bodily injury or property damage for
which [insert owner or operator] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert owner or operator] would be
obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert owner or
operator] under a workers' compensation, disability benefits, or unemployment
compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert owner or operator]
arising from, and in the course of, employment by [insert owner or operator];
or
(2) The spouse, child, parent,
brother, or sister of that employee as a consequence of, or arising from, and
in the course of employment by [insert owner or operator]. This exclusion
applies:
(A) Whether [insert owner or
operator] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert owner or operator];
(2)
Premises that are sold, given away or abandoned by [insert owner or operator]
if the property damage arises out of any part of those premises;
(3) Property loaned to [insert owner or
operator];
(4) Personal property in
the care, custody or control of [insert owner or operator];
(5) That particular part of real property on
which [insert owner or operator] or any contractors or subcontractors working
directly or indirectly on behalf of [insert owner or operator] are performing
operations, if the property damage arises out of these operations.
5. Guarantor agrees that
if, at the end of any fiscal year before termination of this guarantee, the
guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the Department and to [owner or
operator] that he intends to provide alternate liability coverage as specified
in ADEM Admin. Code r.
335-14-2-.08(8),
as applicable, in the name of [owner or operator]. Within 120 days after the
end of such fiscal year, the guarantor shall establish such liability coverage
unless [owner or operator] has done so.
6. The guarantor agrees to notify the
Department by certified mail of a voluntary or involuntary proceeding under
title 11 (Bankruptcy), U.S. Code, naming guarantor as debtor, within 10 days
after commencement of the proceeding. Guarantor agrees that within 30 days
after being notified by the Department of a determination that guarantor no
longer meets the financial test criteria or that he is disallowed from
continuing as a guarantor, he shall establish alternate liability coverage as
specified in ADEM Admin. Code r.
335-14-2-.08(8)
in the name of [owner or operator], unless [owner or operator] has done
so.
7. Guarantor reserves the right
to modify this agreement to take into account amendment or modification of the
liability requirements set by ADEM Admin. Code r.
335-14-2-.08(8),
provided that such modification shall become effective only if the Department
does not disapprove the modification within 30 days of receipt of notification
of the modification.
8. Guarantor
agrees to remain bound under this guarantee for so long as [owner or operator]
must comply with the applicable requirements of ADEM Admin. Code r.
335-14-2-.08(8)
for the above-listed facility(ies), except as provided in paragraph 10 of this
agreement.
9. [Insert the following
language if the guarantor is (a) a direct or higher-tier corporate parent, or
(b) a firm whose parent corporation is also the parent corporation of the owner
or operator]:
10. Guarantor may
terminate this guarantee by sending notice by certified mail to the Department
and to [owner or operator], provided that this guarantee may not be terminated
unless and until [the owner or operator] obtains, and the Department approves,
alternate liability coverage complying with
335-14-2-.08(8).
[Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its "substantial business relationship" with
the owner or operator]:
Guarantor may terminate this guarantee 120 days following
receipt of notification, through certified mail, by the Department and by [the
owner or operator].
11.
Guarantor hereby expressly waives notice of acceptance of this guarantee by any
party.
12. Guarantor agrees that
this guarantee is in addition to and does not affect any other responsibility
or liability of the guarantor with respect to the covered facilities.
13. The Guarantor shall satisfy a third party
liability claim only on receipt of one of the following documents:
(a) Certification from the Principal and the
third-party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Principal] and [insert
name and address of third-party claimant(s)], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or non-sudden]
accidental occurrence arising from operating [Principal's] facility should be
paid in the amount of $________.
[Signatures]
____________________________
Principal
____________________________
(Notary) Date
____________________________
[Signatures]
____________________________
Claimant(s)
____________________________
(Notary) Date
____________________________
(b) A valid final court order establishing a
judgment against the Principal for bodily injury or property damage caused by
sudden or non-sudden accidental occurrences arising from the operation of the
Principal's facility or group of facilities.
14. In the event of combination of this
guarantee with another mechanism to meet liability requirements, this guarantee
will be considered [insert "primary" or "excess"] coverage.
I hereby certify that the wording of the guarantee is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(g)2.
as such regulations were constituted on the date shown immediately
below.
Effective date:
____________________________
[Name of guarantor]
____________________________
[Authorized signature for guarantor]
____________________________
[Name of person signing]
____________________________
[Title of person signing]
____________________________
Signature of witness or notary:
____________________________
(h) A hazardous waste
facility liability endorsement as required by ADEM Admin. Code r.
335-14-2-.08(8)
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Hazardous Secondary Material Reclamation/Intermediate
Facility Liability Endorsement
1. This endorsement certifies that the policy
to which the endorsement is attached provides liability insurance covering
bodily injury and property damage in connection with the insured's obligation
to demonstrate financial responsibility under ADEM Admin. Code r.
335-14-2-.08(8).
The coverage applies at [list EPA Identification Number (if any issued), name,
and address for each facility] for [insert "sudden accidental occurrences,"
"non-sudden accidental occurrences," or "sudden and non-sudden accidental
occurrences"; if coverage is for multiple facilities and the coverage is
different for different facilities, indicate which facilities are insured for
sudden accidental occurrences, which are insured for nonsudden accidental
occurrences, and which are insured for both]. The limits of liability are
[insert the dollar amount of the "each occurrence" and "annual aggregate"
limits of the Insurer's liability], exclusive of legal defense costs.
2. The insurance afforded with respect to
such occurrences is subject to all of the terms and conditions of the policy;
provided, however, that any provisions of the policy inconsistent with
subsections (a) through (e) of this Paragraph 2 are hereby amended to conform
with subsections (a) through (e):
(a)
Bankruptcy or insolvency of the insured shall not relieve the Insurer of its
obligations under the policy to which this endorsement is attached.
(b) The Insurer is liable for the payment of
amounts within any deductible applicable to the policy, with a right of
reimbursement by the insured for any such payment made by the Insurer. This
provision does not apply with respect to that amount of any deductible for
which coverage is demonstrated as specified in ADEM Admin. Code r.
335-14-2-.08(8)(f).
(c) Whenever requested by the Department, the
Insurer agrees to furnish to the Department a signed duplicate original of the
policy and all endorsements.
(d)
Cancellation of this endorsement, whether by the Insurer, the insured, a parent
corporation providing insurance coverage for its subsidiary, or by a firm
having an insurable interest in and obtaining liability insurance on behalf of
the owner or operator of the facility, will be effective only upon written
notice and only after the expiration of 60 days after a copy of such written
notice is received by the Department.
(e) Any other termination of this endorsement
will be effective only upon written notice and only after the expiration of
thirty (30) days after a copy of such written notice is received by the
Department. Attached to and forming part of policy No. -- issued by [name of
Insurer], herein called the Insurer, of [address of Insurer] to [name of
insured] of [address] this _________ day of ________, 20__. The effective date
of said policy is ________day of _______, 20__.
I hereby certify that the wording of this endorsement is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(h)
as such regulation was constituted on the date first above written, and that
the Insurer is licensed to transact the business of insurance, or eligible to
provide insurance as an excess or surplus lines insurer, in one or more States.
[Signature of Authorized Representative of Insurer] [Type name] [Title],
Authorized Representative of [name of Insurer] [Address of
Representative]
(i) A certificate of liability insurance as
required in ADEM Admin. Code r.
335-14-2-.08(8)
must be worded as follows, except that the instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Hazardous Secondary Material Reclamation/ Intermediate
Facility Certificate of Liability Insurance
1. [Name of Insurer], (the "Insurer"), of
[address of Insurer] hereby certifies that it has issued liability insurance
covering bodily injury and property damage to [name of insured], (the
"insured"), of [address of insured] in connection with the insured's obligation
to demonstrate financial responsibility under ADEM Admin. Code r. 335-14-5,
335-14-6, and the financial assurance condition of ADEM Admin. Code r.
335-14-2-.01(4)(a)24.(vi)(VI).
The coverage applies at [list EPA Identification Number (if any issued), name,
and address for each facility] for [insert "sudden accidental occurrences,"
"non-sudden accidental occurrences," or "sudden and non-sudden accidental
occurrences"; if coverage is for multiple facilities and the coverage is
different for different facilities, indicate which facilities are insured for
sudden accidental occurrences, which are insured for nonsudden accidental
occurrences, and which are insured for both]. The limits of liability are
[insert the dollar amount of the "each occurrence" and "annual aggregate"
limits of the Insurer's liability], exclusive of legal defense costs. The
coverage is provided under policy number, issued on [date]. The effective date
of said policy is [date].
2. The
Insurer further certifies the following with respect to the insurance described
in Paragraph 1:
(a) Bankruptcy or insolvency
of the insured shall not relieve the Insurer of its obligations under the
policy.
(b) The Insurer is liable
for the payment of amounts within any deductible applicable to the policy, with
a right of reimbursement by the insured for any such payment made by the
Insurer. This provision does not apply with respect to that amount of any
deductible for which coverage is demonstrated as specified in ADEM Admin. Code
r.
335-14-2-.08(8).
(c) Whenever requested by the Department, the
Insurer agrees to furnish to the Department a signed duplicate original of the
policy and all endorsements.
(d)
Cancellation of the insurance, whether by the insurer, the insured, a parent
corporation providing insurance coverage for its subsidiary, or by a firm
having an insurable interest in and obtaining liability insurance on behalf of
the owner or operator of the hazardous waste management facility, will be
effective only upon written notice and only after the expiration of 60 days
after a copy of such written notice is received by the Department.
(e) Any other termination of the insurance
will be effective only upon written notice and only after the expiration of
thirty (30) days after a copy of such written notice is received by the
Department.
I hereby certify that the wording of this instrument is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(i)
as such regulation was constituted on the date first above written, and that
the Insurer is licensed to transact the business of insurance, or eligible to
provide insurance as an excess or surplus lines insurer, in one or more
States.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of
Insurer]
[Address of Representative]
(j) A letter of credit, as
specified in ADEM Admin. Code r.
335-14-2-.08(8)(h),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Irrevocable Standby Letter of Credit
Name and Address of Issuing Institution
____________________________
Regional Administrator(s)
____________________________
Region(s)
____________________________
U.S. Environmental Protection Agency
____________________________
Dear Sir or Madam: We hereby establish our Irrevocable
Standby Letter of Credit No. _____________in the favor of ["any and all
third-party liability claimants" or insert name of trustee of the standby trust
fund], at the request and for the account of [owner or operator's name and
address] for third-party liability awards or settlements up to [in words] U.S.
dollars $____________ per occurrence and the annual aggregate amount of [in
words] U.S. dollars $__________, for sudden accidental occurrences and/or for
third-party liability awards or settlements up to the amount of [in words] U.S.
dollars $____________per occurrence, and the annual aggregate amount of [in
words] U.S. dollars $___________, for non sudden accidental occurrences
available upon presentation of a sight draft bearing reference to this letter
of credit No. ____________, and [insert the following language if the letter of
credit is being used without a standby trust fund:
(1) a signed certificate reading as follows:
Certificate of Valid Claim
The undersigned, as parties [insert principal] and [insert
name and address of third party claimant(s)], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or non-sudden]
accidental occurrence arising from operations of [principal's] facility should
be paid in the amount of $[ ]. We hereby certify that the claim does not apply
to any of the following:
(a) Bodily
injury or property damage for which [insert principal] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages that [insert principal]
would be obligated to pay in the absence of the contract or
agreement.
(b) Any obligation of
[insert principal] under a workers' compensation, disability benefits, or
unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert principal] arising
from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert principal]. This exclusion applies:
(A) Whether [insert principal] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert principal];
(2) Premises
that are sold, given away or abandoned by [insert principal] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
principal];
(4) Personal property
in the care, custody or control of [insert principal];
(5) That particular part of real property on
which [insert principal] or any contractors or subcontractors working directly
or indirectly on behalf of [insert principal] are performing operations, if the
property damage arises out of these operations.
[Signatures]
____________________________
Grantor _____________________________________________
[Signatures] ________________________________________
Claimant(s) _________________________________________
or (2) a valid final court order establishing a judgment
against the Grantor for bodily injury or property damage caused by sudden or
non-sudden accidental occurrences arising from the operation of the Grantor's
facility or group of facilities.]
This letter of credit is effective as of [date] and shall
expire on [date at least one year later], but such expiration date shall be
automatically extended for a period of [at least one year] on [date and on each
successive expiration date, unless, at least 120 days before the current
expiration date, we notify you, the Alabama Department of Environmental
Management, and [owner's or operator's name] by certified mail that we have
decided not to extend this letter of credit beyond the current expiration
date.
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. [Insert the following language if a standby trust fund is
not being used: "In the event that this letter of credit is used in combination
with another mechanism for liability coverage, this letter of credit shall be
considered [insert "primary" or "excess" coverage]."
We certify that the wording of this letter of credit is
identical to the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(j)
as such regulations were constituted on the date shown immediately
below.
[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 and
copyrighted by the International Chamber of Commerce," or "the Uniform
Commercial Code"].
(k) A surety bond, as specified in ADEM
Admin. Code r.
335-14-2-.08(8)(i),
must be worded as follows: except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Payment Bond Surety
Bond No. [Insert number]
Parties [Insert name and address of owner or operator],
Principal, incorporated in [Insert State of incorporation] of [Insert city and
State of principal place of business] and [Insert name and address of surety
company(ies)], Surety Company(ies), of [Insert surety(ies) place of
business].
EPA Identification Number (if any issued), name, and address
for each facility guaranteed by this bond:
|
Sudden accidental
occurrences
|
Nonsudden
accidental
|
|
Penal Sum per Occurrence
|
[insert amount]
|
[insert amount]
|
| Annual Aggregate |
[insert amount]
|
[insert amount]
|
Purpose: This is an agreement between the Surety(ies) and the
Principal under which the Surety(ies), its (their) successors and assignees,
agree to be responsible for the payment of claims against the Principal for
bodily injury and/or property damage to third parties caused by ["sudden"
and/or "nonsudden"] accidental occurrences arising from operations of the
facility or group of facilities in the sums prescribed herein; subject to the
governing provisions and the following conditions.
Governing Provisions:
(1) Section
22-30-16 of the Alabama Hazardous
Waste Management and Minimization Act of 1978, as amended.
(2) Rules and regulations of the Alabama
Department of Environmental Management Administrative Code, particularly
335-14-5, 335-14-6, and
335-14-2-.08 (if
applicable).
Conditions:
(1) The
Principal is subject to the applicable governing provisions that require the
Principal to have and maintain liability coverage for bodily injury and
property damage to third parties caused by ["sudden" and/ or "non-sudden"]
accidental occurrences arising from operations of the facility or group of
facilities. Such obligation does not apply to any of the following:
(a) Bodily injury or property damage for
which [insert Principal] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert Principal] would be obligated to
pay in the absence of the contract or agreement.
(b) Any obligation of [insert Principal]
under a workers' compensation, disability benefits, or unemployment
compensation law or similar law.
(c) Bodily injury to:
(1) An employee of [insert Principal] arising
from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert Principal]. This exclusion applies:
(A) Whether [insert Principal] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert Principal];
(2) Premises
that are sold, given away or abandoned by [insert Principal] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
Principal];
(4) Personal property
in the care, custody or control of [insert Principal];
(5) That particular part of real property on
which [insert Principal] or any contractors or subcontractors working directly
or indirectly on behalf of [insert Principal] are performing operations, if the
property damage arises out of these operations.
(2) This bond assures that the Principal will
satisfy valid third party liability claims, as described in condition
1.
(3) If the Principal fails to
satisfy a valid third party liability claim, as described above, the
Surety(ies) becomes liable on this bond obligation.
(4) The Surety(ies) shall satisfy a third
party liability claim only upon the receipt of one of the following documents:
(a) Certification from the Principal and the
third party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert name of Principal] and
[insert name and address of third party claimant(s)], hereby certify that the
claim of bodily injury and/or property damage caused by a [sudden or
non-sudden] accidental occurrence arising from operating [Principal's] facility
should be paid in the amount of $[________].
[Signature]
Principal
[Notary]
Date
[Signature(s)]
Claimant(s)
[Notary]
Date
Or
(b) A
valid final court order establishing a judgment against the Principal for
bodily injury or property damage caused by sudden or non-sudden accidental
occurrences arising from the operation of the Principal's facility or group of
facilities.
(5) In the
event of combination of this bond with another mechanism for liability
coverage, this bond will be considered [insert "primary" or "excess"]
coverage.
(6) The liability of the
Surety(ies) shall not be discharged by any payment or succession of payments
hereunder, unless and until such payment or payments shall amount in the
aggregate to the penal sum of the bond. In no event shall the obligation of the
Surety(ies) hereunder exceed the amount of said annual aggregate penal sum,
provided that the Surety(ies) furnish(es) notice to the Department forthwith of
all claims filed and payments made by the Surety(ies) under this
bond.
(7) The Surety(ies) may
cancel the bond by sending notice of cancellation by certified mail to the
Principal and the Department, provided, however, that cancellation shall not
occur during the 120 days beginning on the date of receipt of the notice of
cancellation by the Principal and the Department, as evidenced by the return
receipt.
(8) The Principal may
terminate this bond by sending written notice to the Surety(ies) and to the
Alabama Department of Environmental Management.
(9) The Surety(ies) hereby waive(s)
notification of amendments to applicable laws, statutes, rules and regulations
and agree(s) that no such amendment shall in any way alleviate its (their)
obligation on this bond.
(10) This
bond is effective from [insert date] (12:01 a.m., standard time, at the address
of the Principal as stated herein) and shall continue in force until terminated
as described above.
In Witness Whereof, the Principal and Surety(ies) have
executed this Bond and have affixed their seals on the date set forth above.
The persons whose signatures appear below hereby certify that they are
authorized to execute this surety bond on behalf of the Principal and
Surety(ies) and that the wording of this surety bond is identical to the
wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(k),
as such regulations were constituted on the date this bond was executed.
PRINCIPAL
[Signature(s)]
[Name(s)]
[Title(s)]
[Corporate Seal]
CORPORATE SURETY[IES]
[Name and address]
State of incorporation:
_________________________
Liability Limit: $
_________________________
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.]
Bond premium:
$______________________________________________
(1) A trust agreement, as specified in ADEM
Admin. Code r.
335-14-2-.08(8)(j),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Trust Agreement
Trust Agreement, the "Agreement," entered into as of [date]
by and between [name of the owner or operator] a [name of State] [insert
"corporation," "partnership," "association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert, "incorporated in the State
of _________" or "a national bank"], the "trustee."
Whereas, the Alabama Department of Environmental Management
(the "Department") has established certain regulations applicable to the
Grantor, requiring that an owner or operator must demonstrate financial
responsibility for bodily injury and property damage to third parties caused by
sudden accidental and/or non-sudden accidental occurrences arising from
operations of the facility or group of facilities.
Whereas, the Grantor has elected to establish a trust to
assure all or part of such financial responsibility for the facilities
identified herein.
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions. As
used in this Agreement:
(a) The term "Grantor"
means the owner or operator who enters into this Agreement and any successors
or assigns of the Grantor.
(b) The
term "Trustee" means the Trustee who enters into this Agreement and any
successor Trustee.
Section
2. Identification of Facilities. This agreement pertains to the
facilities identified on attached schedule A [on schedule A, for each facility
list the EPA Identification Number (if any issued), name, and address of the
facility(ies) and the amount of liability coverage, or portions thereof, if
more than one instrument affords combined coverage as demonstrated by this
Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a trust
fund, hereinafter the "Fund," for the benefit of any and all third parties
injured or damaged by [sudden and/or non-sudden] accidental occurrences arising
from operation of the facility(ies) covered by this guarantee, in the amounts
of _________[up to $1 million] per occurrence and __________[up to $2 million]
annual aggregate for sudden accidental occurrences and __________[up to $3
million] per occurrence and ___________[up to $6 million] annual aggregate for
non-sudden occurrences, except that the Fund is not established for the benefit
of third parties for the following:
(a)
Bodily injury or property damage for which [insert Grantor] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages that [insert Grantor]
would be obligated to pay in the absence of the contract or
agreement.
(b) Any obligation of
[insert Grantor] under a workers' compensation, disability benefits, or
unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert Grantor] arising
from, and in the course of, employment by [insert Grantor]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert Grantor]. This exclusion applies:
(A) Whether [insert Grantor] may be liable as
an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert Grantor];
(2) Premises
that are sold, given away or abandoned by [insert Grantor] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
Grantor];
(4) Personal property in
the care, custody or control of [insert Grantor];
(5) That particular part of real property on
which [insert Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations, if the
property damage arises out of these operations. In the event of combination
with another mechanism for liability coverage.
The Fund shall be considered [insert "primary" or "excess"]
coverage. The Fund is established initially as consisting of the property,
which is acceptable to the Trustee, described in Schedule B attached hereto.
Such property and any other property subsequently transferred to the Trustee is
referred to as the Fund, together with all earnings and profits thereon, less
any payments or distributions made by the Trustee pursuant to this Agreement.
The Fund shall be held by the Trustee, IN TRUST, as hereinafter provided. The
Trustee shall not be responsible nor shall it undertake any responsibility for
the amount or adequacy of, nor any duty to collect from the Grantor, any
payments necessary to discharge any liabilities of the Grantor established by
the Department.
Section 4. Payment for Bodily Injury or
Property Damage. The Trustee shall satisfy a third party liability claim by
making payments from the Fund only upon receipt of one of the following
documents;
(a) Certification from the Grantor
and the third party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert name
and address of third party claimant(s)], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or non-sudden]
accidental occurrence arising from operating [Grantor's] facility or group of
facilities should be paid in the amount of $[____________].
[Signatures]
Grantor
[Signatures]
Claimant(s)
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or non-sudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of cash or securities
acceptable to the Trustee.
Section
6. Trustee Management. The Trustee shall invest and reinvest the
principal and income, in accordance with general investment policies and
guidelines which the Grantor may communicate in writing to the Trustee from
time to time, subject, however, to the provisions of this section. In
investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee
shall discharge his duties with respect to the trust fund solely in the
interest of the beneficiary and with the care, skill, prudence, and diligence
under the circumstance then prevailing which persons of prudence, acting in a
like capacity and familiar with such matters, would use in the conduct of an
enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended,
15 U.S.C.
80a-2.(a), shall not be acquired or held
unless they are securities or other obligations of the Federal or a State
government;
(ii) The Trustee is
authorized to invest the Fund in time or demand deposits of the Trustee, to the
extent insured by an agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The
Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common commingled, or collective trust fund
created by the Trustee in which the fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company Act of 1940, 15
U.S.C.
81a-1
et
seq., including one which may be created, managed, underwritten,
or to which investment advice is rendered or the shares of which are sold by
the Trustee. The Trustee may vote such shares in its
discretion.
Section 8.
Express Powers of Trustee. Without in any way limiting the powers and
discretions conferred upon the Trustee by the other provisions of this
Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depository with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuations. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the Department a statement confirming the value of the Trust. Any securities in
the Fund shall be valued at market value as of no more than 60 days prior to
the anniversary date of establishment of the Fund. The failure of the Grantor
to object in writing to the Trustee within 90 days after the statement has been
furnished to the Grantor and the Department shall constitute a conclusively
binding assent by the Grantor barring the Grantor from asserting any claim or
liability against the Trustee with respect to matters disclosed in the
statement.
Section 11. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 12.
Trustee Compensation. The Trustee shall be entitled to reasonable compensation
for its services as agreed upon in writing from time to time with the
Grantor.
Section 13. Successor
Trustee. The Trustee may resign or the Grantor may replace the Trustee, but
such resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in a
writing sent to the Grantor, the Department, and the present Trustee by
certified mail 10 days before such change becomes effective. Any expenses
incurred by the Trustee as a result of any of the acts contemplated by this
section shall be paid as provided in Section 9.
Section 14. Instructions to the Trustee. All
orders, requests, and instructions by the Grantor to the Trustee shall be in
writing, signed by such persons as are designated in the attached Exhibit A or
such other designees as the Grantor may designate by amendments to Exhibit A.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. All orders, requests,
and instructions by the Department to the Trustee shall be in writing, signed
by the Department, or their designees, and the Trustee shall act and shall be
fully protected in acting in accordance with such orders, requests, and
instructions. The Trustee shall have the right to assume, in the absence of
written notice to the contrary, that no event constituting a change or a
termination of the authority of any person to act on behalf of the Grantor or
the Department hereunder has occurred. The Trustee shall have no duty to act in
the absence of such orders, requests, and instructions from the Grantor and/or
the Department, except as provided for herein.
Section 15. Notice of Nonpayment. If a
payment for bodily injury or property damage is made under Section 4 of this
trust, the Trustee shall notify the Grantor of such payment and the amount(s)
thereof within five (5) working days. The Grantor shall, on or before the
anniversary date of the establishment of the Fund following such notice, either
make payments to the Trustee in amounts sufficient to cause the trust to return
to its value immediately prior to the payment of claims under Section 4, or
shall provide written proof to the Trustee that other financial assurance for
liability coverage has been obtained equaling the amount necessary to return
the trust to its value prior to the payment of claims. If the Grantor does not
either make payments to the Trustee or provide the Trustee with such proof, the
Trustee shall within 10 working days after the anniversary date of the
establishment of the Fund provide a written notice of nonpayment to the
Department.
Section 16. Amendment
of Agreement. This Agreement may be amended by an instrument in writing
executed by the Grantor, the Trustee, and the Department, or by the Trustee and
the Department if the Grantor ceases to exist.
Section 17. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section 16, this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the Department, or by
the Trustee and the Department, if the Grantor ceases to exist. Upon
termination of the Trust, all remaining trust property, less final trust
administration expenses, shall be delivered to the Grantor. The Department will
agree to termination of the Trust when the owner or operator substitutes
alternate financial assurance as specified in this section.
Section 18. Immunity and Indemnification. The
Trustee shall not incur personal liability of any nature in connection with any
act or omission, made in good faith, in the administration of this Trust, or in
carrying out any directions by the Grantor or the Department issued in
accordance with this Agreement. The Trustee shall be indemnified and saved
harmless by the Grantor or from the Trust Fund, or both, from and against any
personal liability to which the Trustee may be subjected by reason of any act
or conduct in its official capacity, including all expenses reasonably incurred
in its defense in the event the Grantor fails to provide such
defense.
Section 19. Choice of Law.
This Agreement shall be administered, construed, and enforced according to the
laws of the State of [enter name of State].
Section 20. Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each section of this
Agreement shall not affect the interpretation or the legal efficacy of this
Agreement.
In Witness Whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(l)
as such regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(2) The following is an example of the
certification of acknowledgement which must accompany the trust agreement for a
trust fund as specified in ADEM Admin. Code r.
335-14-2-.08(8)(h).
State of
_________________________
County of
_________________________
On this [date], before me personally came [owner or operator]
to me known, who, being by me duly sworn, did depose and say that she/he
resides at [address], that she/he is [title] of [corporation], the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that she/he signed her/his name thereto by like
order.
_________________________
[Signature of Notary Public]
(m)
1. A
standby trust agreement, as specified in ADEM Admin. Code r.
335-14-2-.08(8)(h),
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
Standby Trust Agreement
Trust Agreement, the "Agreement," entered into as of [date]
by and between [name of the owner or operator] a [name of a State] [insert
"corporation," "partnership," "association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert, "incorporated in the State
of ________" or "a national bank"], the "trustee."
Whereas the Alabama Department of Environmental Management
(the "Department," has established certain regulations applicable to the
Grantor, requiring that an owner or operator must demonstrate financial
responsibility for bodily injury and property damage to third parties caused by
sudden accidental and/or non-sudden accidental occurrences arising from
operations of the facility or group of facilities.
Whereas, the Grantor has elected to establish a standby trust
into which the proceeds from a letter of credit may be deposited to assure all
or part of such financial responsibility for the facilities identified
herein.
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions. As
used in this Agreement:
(a) The term Grantor
means the owner or operator who enters into this Agreement and any successors
or assigns of the Grantor.
(b) The
term Trustee means the Trustee who enters into this Agreement and any successor
Trustee.
Section 2.
Identification of Facilities. This Agreement pertains to the facilities
identified on attached schedule A [on schedule A, for each facility list the
EPA Identification Number (if any issued), name, and address of the
facility(ies) and the amount of liability coverage, or portions thereof, if
more than one instrument affords combined coverage as demonstrated by this
Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a standby
trust fund, hereafter the "Fund," for the benefit of any and all third parties
injured or damaged by [sudden and/or non-sudden] accidental occurrences arising
from operation of the facility(ies) covered by this guarantee, in the amounts
of __________[up to $1 million] per occurrence and __________[up to $2 million]
annual aggregate for sudden accidental occurrences and __________[up to $3
million] per occurrence and __________[up to $6 million] annual aggregate for
non-sudden occurrences, except that the Fund is not established for the benefit
of third parties for the following:
(a)
Bodily injury or property damage for which [insert Grantor] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages that [insert Grantor]
would be obligated to pay in the absence of the contract or
agreement.
(b) Any obligation of
[insert Grantor] under a workers' compensation, disability benefits, or
unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert Grantor] arising
from, and in the course of, employment by [insert Grantor]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert Grantor]. This exclusion applies:
(A) Whether [insert Grantor] may be liable as
an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert Grantor];
(2) Premises
that are sold, given away or abandoned by [insert Grantor] if the property
damage arises out of any part of those premises;
(3) Property loaned by [insert
Grantor];
(4) Personal property in
the care, custody or control of [insert Grantor];
(5) That particular part of real property on
which [insert Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations, if the
property damage arises out of these operations.
In the event of combination with another mechanism for
liability coverage, the Fund shall be considered [insert "primary" or "excess"]
coverage.
The Fund is established initially as consisting of the
proceeds of the letter of credit deposited into the Fund. Such proceeds and any
other property subsequently transferred to the Trustee is referred to as the
Fund, together with all earnings and profits thereon, less any payments or
distributions made by the Trustee pursuant to this Agreement. The Fund shall be
held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not
be responsible nor shall it undertake any responsibility for the amount or
adequacy of, nor any duty to collect from the Grantor, any payments necessary
to discharge any liabilities of the Grantor established by the
Department.
Section
4. Payment for Bodily Injury or Property Damage. The Trustee shall
satisfy a third party liability claim by drawing on the letter of credit
described in Schedule B and by making payments from the Fund only upon receipt
of one of the following documents:
(a)
Certification from the Grantor and the third party claimant(s) that the
liability claim should be paid. The certification must be worded as follows,
except that instructions in brackets are to be replaced with the relevant
information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert name
and address of third party claimant(s)], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Grantor's] facility should be
paid in the amount of $[________]
[Signature]
_________________________
Grantor
_________________________
[Signatures]
_________________________
Claimant(s)
_________________________
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or nonsudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of the proceeds from
the letter of credit drawn upon by the Trustee in accordance with the
requirements of ADEM Admin. Code r.
335-14-2-.08(12)(k)
and Section 4 of this Agreement.
Section
6. Trustee Management. The Trustee shall invest and reinvest the
principal and income, in accordance with general investment policies and
guidelines which the Grantor may communicate in writing to the Trustee from
time to time, subject, however, to the provisions of this Section. In
investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee
shall discharge his duties with respect to the trust fund solely in the
interest of the beneficiary and with the care, skill, prudence, and diligence
under the circumstances then prevailing which persons of prudence, acting in a
like capacity and familiar with such matters, would use in the conduct of an
enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended,
15 U.S.C.
80a-2(a), shall not be
acquired or held, unless they are securities or other obligations of the
Federal or a State government;
(ii)
The Trustee is authorized to invest the Fund in time or demand deposits of the
Trustee, to the extent insured by an agency of the Federal or a State
government; and
(iii) The Trustee
is authorized to hold cash awaiting investment or distribution uninvested for a
reasonable time and without liability for the payment of interest
thereon.
Section 7.
Commingling and Investment. The Trustee is expressly authorized in its
discretion:
(a) To transfer from time to time
any or all of the assets of the Fund to any common, commingled, or collective
trust fund created by the Trustee in which the Fund is eligible to participate,
subject to all of the provisions thereof, to be commingled with the assets of
other trusts participating therein; and
(b) To purchase shares in any investment
company registered under the Investment Company Act of 1940,
15 U.S.C.
80a-1
et seq.,
including one which may be created, managed, underwritten, or to which
investment advice is rendered or the shares of which are sold by the Trustee.
The Trustee may vote such shares in its discretion.
Section 8. Express Powers of Trustee. Without
in any way limiting the powers and discretions conferred upon the Trustee by
the other provisions of this Agreement or by law, the Trustee is expressly
authorized and empowered:
(a) To sell,
exchange, convey, transfer, or otherwise dispose of any property held by it, by
public or private sale. No person dealing with the Trustee shall be bound to
see to the application of the purchase money or to inquire into the validity or
expediency of any such sale or other disposition;
(b) To make, execute, acknowledge, and
deliver any and all documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the powers herein
granted;
(c) To register any
securities held in the Fund in its own name or in the name of a nominee and to
hold any security in bearer form or in book entry, or to combine certificates
representing such securities with certificates of the same issue held by the
Trustee in other fiduciary capacities, or to deposit or arrange for the deposit
of such securities in a qualified central depositary even though, when so
deposited, such securities may be merged and held in bulk in the name of the
nominee of such depositary with other securities deposited therein by another
person, or to deposit or arrange for the deposit of any securities issued by
the United States Government, or any agency or instrumentality thereof, with a
Federal Reserve Bank, but the books and records of the Trustee shall at all
times show that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements to the Trustee shall be paid from
the Fund.
Section 10. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 11.
Trustee Compensation. The Trustee shall be entitled to reasonable compensation
for its services as agreed upon in writing from time to time with the
Grantor.
Section 12. Successor
Trustee. The Trustee may resign or the Grantor may replace the Trustee, but
such resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in a
writing sent to the Grantor, the Department and the present Trustee by
certified mail 10 days before such change becomes effective. Any expenses
incurred by the Trustee as a result of any of the acts contemplated by this
Section shall be paid as provided in Section 9.
Section 13. Instructions to the Trustee. All
orders, requests, certifications of valid claims, and instructions to the
Trustee shall be in writing, signed by such persons as are designated in the
attached Exhibit A or such other designees as the Grantor may designate by
amendments to Exhibit A. The Trustee shall be fully protected in acting without
inquiry in accordance with the Grantor's orders, requests, and instructions.
The Trustee shall have the right to assume, in the absence of written notice to
the contrary, that no event constituting a change or a termination of the
authority of any person to act on behalf of the Grantor or the Department
hereunder has occurred. The Trustee shall have no duty to act in the absence of
such orders, requests, and instructions from the Grantor and/or the Department,
except as provided for herein.
Section
14. Amendment of Agreement. This Agreement may be amended by an
instrument in writing executed by the Grantor, the Trustee, and the Department,
or by the Trustee and the Department if the Grantor ceases to exist.
Section 15. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section 14, this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the Department, or by
the Trustee and the Department, if the Grantor ceases to exist. Upon
termination of the Trust, all remaining trust property, less final trust
administration expenses, shall be paid to the Grantor. The Department will
agree to termination of the Trust when the owner or operator substitutes
alternative financial assurance as specified in this section.
Section 16. Immunity and indemnification. The
Trustee shall not incur personal liability of any nature in connection with any
act or omission, made in good faith, in the administration of this Trust, or in
carrying out any directions by the Grantor and the Department issued in
accordance with this Agreement. The Trustee shall be indemnified and saved
harmless by the Grantor or from the Trust Fund, or both, from and against any
personal liability to which the Trustee may be subjected by reason of any act
or conduct in its official capacity, including all expenses reasonably incurred
in its defense in the event the Grantor fails to provide such
defense.
Section 17. Choice of Law.
This Agreement shall be administered, construed, and enforced according to the
laws of the State of Alabama.
Section
18. Interpretation. As used in this Agreement, words in the
singular include the plural and words in the plural include the singular. The
descriptive headings for each Section of this Agreement shall not affect the
interpretation of the legal efficacy of this Agreement.
In Witness Whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in ADEM Admin. Code r.
335-14-2-.08(12)(m)
as such regulations were constituted on the date first above written.
_________________________
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
_________________________
[Signature of Trustee]
Attest:
[Title]
[Seal]
2. The following is an example of the
certification of acknowledgement which must accompany the trust agreement for a
standby trust fund as specified in ADEM Admin. Code r.
335-14-2-.08(8)(h).
State of
___________________________________________________
County of
__________________________________________________
On this [date], before me personally came [owner or operator]
to me known, who, being by me duly sworn, did depose and say that she/he
resides at [address], that she/he is [title] of [corporation], the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that she/he signed her/ his name hereto by like
order.
_________________________
[Signature of Notary
Public]
