(4)
Financial assurance for closure. An owner or operator
of each facility must establish financial assurance for closure of the
facility. He must choose from the options as specified in 335-14-5-.08(4) (a)
through (f).
(a) Closure trust fund.
1. An owner or operator may satisfy the
requirements of 335-14-5-.08(4) by establishing a closure trust fund which
conforms to the requirements of 335-14-5-.08(4)(a) and submitting an originally
signed duplicate of the trust agreement to the Department. An owner or operator
of a new facility must submit the originally signed duplicate of the trust
agreement to the Department at least 60 days before the date on which hazardous
waste is first received for treatment, storage, or disposal. 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 335-14-5-.08(12)(a)1. and the trust
agreement must be accompanied by a formal certification of acknowledgment (for
example, see 335-14-5-.08(12) (a) 2.). Schedule A of the trust agreement must
be updated and an originally signed duplicate must be submitted to the
Department, within 60 days after a change in the amount of the current closure
cost estimate covered by the agreement.
3. Payments into the trust fund must be made
annually by the owner or operator over the term of the initial Hazardous Waste
Facility Permit, over the remaining operating life of the facility as estimated
in the closure plan, or eight years, whichever period is shorter. The payments
into the closure trust fund must be made as follows:
(i) For a new facility, the first payment
must be made before the initial receipt of hazardous waste for treatment,
storage, or disposal. A receipt from the trustee for this payment must be
submitted by the owner or operator to the Department before the initial receipt
of hazardous waste. Subsequent payments must be made no later than 30 days
after the anniversary date of the first payment. Payments must be made
according to the following schedule:
(I) If
the initial permit is for a term of one year, 100% of the current closure cost
estimate must be paid initially;
(II) If the initial permit is for a term of
two years, 50% of the current closure cost estimate must be paid each of the
two years;
(III) If the initial
permit is for a term of three years, 34% of the current closure cost estimate
must be paid initially and 33% of the current closure cost estimate must be
paid each of the two subsequent years;
(IV) If the initial permit is for a term of
four years, 25% of the current closure cost estimate must be paid each of the
four years;
(V) If the initial
permit is for a term of five years, 20% of the current closure cost estimate
must be paid each of the five years;
(VI) If the initial permit is for a term of
six years, 20% of the current closure cost estimate must be paid each of the
first four years and 10% of the current closure cost estimate must be paid each
of the two subsequent years;
(VII)
If the initial permit is for a term of seven years, 20% of the current closure
cost estimate must be paid each of the first three years and 10% of the current
closure cost estimate must be paid each of the four subsequent years;
and
(VIII) If the initial permit is
for a term of eight years or longer, 20% of the current closure cost estimate
must be paid each of the first two years and 10% of the current closure cost
estimate must be paid each of the six subsequent years;
(ii) Following the initial payment, all
subsequent annual payments must reconcile any difference between the actual
value of the trust fund and the required value of the trust fund.
The required value of the trust fund accounts for adjustments
to the closure-cost estimate made in accordance with 335-14-5-.08(3), and may
be calculated by determining the value of the trust fund if the current payment
and all previous payments were made using the current closure-cost
estimate.
(iii) If an owner
or operator of an existing facility establishes a trust fund as specified in
335-14-6-.08(4)(a),
and the value of the trust fund is less than the current closure cost estimate
when a permit is issued for the facility, the amount of the current closure
cost estimate still to be paid into the trust fund must be paid according to
the schedule set out in 335-14-5-.08(4)(a)3.(i).
4. The owner or operator may accelerate
payments into the trust fund or he may deposit the full amount of the current
closure cost estimate at the time the fund is established. However, he must
maintain the value of the fund at no less than the value that the fund would
have if annual payments were made as specified in 335-14-5-.08(4)
(a)3.
5. If the owner or operator
establishes a closure trust fund after having used one or more alternate
mechanisms specified in 335-14-5-.08(4) or
335-14-6-.08(4),
his first payment must be in at least the amount that the fund would contain if
the trust fund were established initially and annual payments made according to
specifications of 335-14-5-.08(4) (a) and
335-14-6-.08(4)(a),
as applicable.
6. After the pay-in
period is completed, whenever the current closure 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
closure cost estimate, or obtain other financial assurance as specified in
335-14-5-.08(4) to cover the difference.
7. If the value of the trust fund is greater
than the total amount of the current closure cost estimate, the owner or
operator may submit a written request to the Department for release of the
amount in excess of the current closure cost estimate.
8. If an owner or operator substitutes other
financial assurance as specified in 335-14-5-.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 closure cost estimate covered by the trust
fund.
9. Within 60 days after
receiving a request from the owner or operator for release of funds as
specified in 335-14-5-.08(4)(a)7. or (a)8., the Department will instruct the
trustee to release to the owner or operator such funds as the Department
specifies in writing.
10. After
beginning partial or final closure, an owner or operator or another person
authorized to conduct partial or final closure 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. Within
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 335-14-5-.08(4)(i), 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 the owner or operator with a detailed written statement of
reasons.
11. The Department will
agree to termination of the trust when:
(i) An
owner or operator substitutes alternate financial assurance as specified in
335-14-5-.08(4); or
(ii) The
Department releases the owner or operator from the requirements of
335-14-5-.08(4) in accordance with 335-14-5-.08(4) (i).
(b) Surety bond guaranteeing
payment into a closure trust fund.
1. An
owner or operator may satisfy the requirements of 335-14-5-.08(4) by obtaining
a surety bond which conforms to the requirements of 335-14-5-.08(4)(b) and
submitting the bond to the Department. An owner or operator of a new facility
must submit the bond to the Department at least 60 days before the date on
which hazardous waste is first received for treatment, storage, or disposal.
The bond must be effective before this initial receipt of hazardous waste. 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
335-14-5-.08(12)(b).
3. The owner
or operator who uses a surety bond to satisfy the requirements of this section
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 335-14-5-.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 335-14-5-.08(4),
the following are not required by these regulations:
(I) Payments into the trust fund as specified
in 335-14-5-.08(4)(a);
(II)
Updating of Schedule A of the trust agreement (see 335-14-5-.08(12)(a) ) to
show current closure 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 the
beginning of final closure of the facility; or
(ii) Fund the standby trust fund in an amount
equal to the penal sum within 15 days after an administrative order to begin
final closure issued by the Department becomes final, or within 15 days after
an order to begin final closure is issued by a U.S. district court or other
court of competent jurisdiction; or
(iii) Provide alternate financial assurance
as specified in 335-14-5-.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 closure cost estimate, except as provided
in 335-14-5-.08(4) (g).
7. Whenever
the current closure 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
closure cost estimate and submit evidence of such increase to the Department,
or obtain other financial assurance as specified in 335-14-5-.08(4) to cover
the increase. Whenever the current closure cost estimate decreases the penal
sum may be reduced to the amount of the current closure 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. The Department will provide such written consent when:
(i) An owner or operator substitutes
alternate financial assurance as specified in 335-14-5-.08(4); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(4) in accordance with
335-14-5-.08(4) (i).
(c) Surety bond guaranteeing performance of
closure.
1. An owner or operator may satisfy
the requirements of 335-14-5-.08(4) by obtaining a surety bond which conforms
to the requirements of 335-14-5-.08(4)(c) and submitting the bond to the
Department. An owner or operator of a new facility must submit the bond to the
Department at least 60 days before the date on which hazardous waste is first
received for treatment, storage, or disposal. The bond must be effective before
this initial receipt of hazardous waste. 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 335-14-5-.08(12)(c).
3. The owner or operator who uses a surety
bond to satisfy the requirements of 335-14-5-.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 must meet
the requirements specified in 335-14-5-.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) Unless the standby trust
fund is funded pursuant to the requirements of 335-14-5-.08, the following are
not required by these regulations:
(I)
Payments into the trust fund as specified in 335-14-5-.08(4)(a);
(II) Updating of Schedule A of the trust
agreement (see 335-14-5-.08(12)(a) ) to show current closure 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) Perform final closure in
accordance with the closure plan and other requirements of the permit for the
facility whenever required to do so; or
(ii) Provide alternate financial assurance as
specified in 335-14-5-.08, 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. Following a
final administrative determination pursuant to Sections
22-30-19
and
22-22A-7,
Code of Ala. 1975, that the owner or operator has
failed to perform final closure in accordance with the approved closure plan
and other permit requirements when required to do so, under the terms of the
bond the surety will perform final closure as guaranteed by the bond or will
deposit the amount of the penal sum into the standby trust fund.
6. The penal sum of the bond must be in an
amount at least equal to the current closure cost estimate.
7. Whenever the current closure 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 closure cost estimate and
submit evidence of such increase to the Department, or obtain other financial
assurance as specified in 335-14-5-.08(4). Whenever the current closure cost
estimate decreases, the penal sum may be reduced to the amount of the current
closure 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. The Department will provide such written consent when:
(i) An owner or operator substitutes
alternate financial assurance as specified in 335-14-5-.08(4); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(4) in accordance with
335-14-5-.08(4)(i).
10.
The surety will not be liable for deficiencies in the performance of closure by
the owner or operator after the Department releases the owner or operator from
the requirements of 335-14-5-.08(4) in accordance with
335-14-5-.08(4)(i).
(d)
Closure letter of credit.
1. An owner or
operator may satisfy the requirements of 335-14-5-.08(4) by obtaining an
irrevocable standby letter of credit which conforms to the requirements of
335-14-5-.08(4)(d) and submitting the letter to the Department. An owner or
operator of a new facility must submit the letter of credit to the Department
at least 60 days before the date on which hazardous waste is first received for
treatment, storage, or disposal. The letter of credit must be effective before
this initial receipt of hazardous waste. 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
335-14-5-.08(12)(d).
3. An owner or
operator who uses a letter of credit to satisfy the requirements of
335-14-5-.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 335-14-5-.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
335-14-5-.08(4), the following are not required by these regulations:
(I) Payments into the trust fund as specified
in 335-14-5-.08(4)(a);
(II)
Updating of Schedule A of the trust agreement (see 335-14-5-.08(12)(a) ) to
show current closure 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, name, and address of the facility,
and the amount of funds assured for closure of the facility by the letter of
credit.
5. The letter of credit
must be irrevocable and issued for a period of at least one year. The letter of
credit must provide that the expiration date will be automatically extended for
a period of at least one 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 closure cost estimate, except as provided
in 335-14-5-.08(4)(g).
7. Whenever
the current closure 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 closure cost estimate and submit evidence of such increase
to the Department, or obtain other financial assurance as specified in
335-14-5-.08(4) to cover the increase. Whenever the current closure cost
estimate decreases, the amount of the credit may be reduced to the amount of
the current closure cost estimate following written approval by the
Department.
8. Following a final
administrative determination pursuant to Sections
22-30-19
and
22-22A-7,
Code of Ala. 1975, that the owner or operator has
failed to perform final closure in accordance with the closure plan and other
permit requirements when required to do so, the Department may draw on the
letter of credit.
9. If the owner
or operator does not establish alternate financial assurance as specified in
335-14-5-.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 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 335-14-5-.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 335-14-5-.08(4); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(4) in accordance with
335-14-5-.08(4) (i).
(e) Closure insurance.
1. An owner or operator may satisfy the
requirements of 335-14-5-.08(4) by obtaining closure insurance which conforms
to the requirements of 335-14-5-.08(4)(e) and submitting an originally signed
certificate of such insurance to the Department. An owner or operator of a new
facility must submit the certificate of insurance to the Department at least 60
days before the date on which hazardous waste is first received for treatment,
storage, or disposal. The insurance must be effective before this initial
receipt of hazardous waste. 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 the State of Alabama, and must not be
captive insurance as defined in 335-14-51-.02 unless the requirements of
335-14-5-.08(4)(e)1.(ii) are met.
(i) The use
of insurance to demonstrate financial assurance for closure and post-closure
care pertains exclusively to those insurance policies underwritten by
commercial property and casualty insurers (primary or excess and surplus
lines), through which, in the insurance contract, the financial burden for
closure and post-closure care is transferred to the third-party insurer. Except
as provided in 335-14-5-.08(4)(e)1.(ii), the third-party insurer must assume
financial responsibility for this accepted risk, using its own pool of
resources that is independent, separate, and unrelated to that of the insured
(owner or operator). The use of insurance policies underwritten by captive
insurers therefore is prohibited unless the owner/operator can demonstrate
compliance with condition 335-14-5-.08(4)(e)1.(ii) for each year captive
insurance is used.
(ii) Captive
insurance may be used for closure insurance only when the facility provides
annual documentation to the Department that the owner or operator is in
compliance with the requirements of Rule 335-14-5-.08(4)(f).
2. The wording of the certificate
of insurance must be identical to the wording specified in
335-14-5-.08(12)(e).
3. The closure
insurance policy must be issued for a face amount at least equal to the current
closure cost estimate, except as provided in 335-14-5-.08(4)(g). 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 closure insurance
policy must guarantee that funds will be available to close the facility
whenever final closure occurs. The policy must also guarantee that once final
closure begins, 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,
an owner or operator or any other person authorized to conduct closure may
request reimbursements for closure expenditures by submitting itemized bills to
the Department. The owner or operator may request reimbursements for partial
closure 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 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 face amount of the policy, he may withhold reimbursements of
such amounts as he deems prudent until he determines, in accordance with
335-14-5-.08(4)(i), 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 insurer to make such reimbursements, he will
provide the owner or operator with 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
335-14-5-.08(4)10. Failure to pay the premium, without substitution of
alternate financial assurance as specified in 335-14-5-.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) The permit is
terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Department or
a court of competent jurisdiction; or
(iv) The owner or operator is named as 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 closure 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 closure cost estimate and submit evidence of such increase to
the Department, or obtain other financial assurance as specified in
335-14-5-.08(4) to cover the increase. Whenever the current closure cost
estimate decreases, the face amount may be reduced to the amount of the current
closure cost estimate following written approval by the Department.
10. The Department will give written consent
to the owner or operator that it may terminate the insurance policy when:
(i) An owner or operator substitutes
alternate financial assurance as specified in 335-14-5-.08(4); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(4) in accordance with
335-14-5-.08(4) (i).
(f) Financial test and corporate guarantee
for closure.
1. An owner or operator may
satisfy the requirements of 335-14-5-.08(4) by demonstrating that he passes a
financial test as specified in 335-14-5-.08(4). To pass this test the owner or
operator must meet the criteria of either 335-14-5-.08(4) (f) 1.(i) or
(f)1.(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
closure and post-closure 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 closure and post-closure 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 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 closure and post-closure 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 closure and post-closure cost
estimates.
2.
The phrase "current closure and post-closure cost estimates" as used in
335-14-5-.08(4)(f)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 (335-14-5-.08(12) ).
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 335-14-5-.08(12)(f);
(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) A special report from the owner's or
operator's independent certified public accountant to the owner or operator
stating that:
(I) He has compared the data
which the letter from the chief financial officer specifies as having been
derived from the independently audited, year-end financial statements for the
latest fiscal year with the amounts in such financial statements; and
(II) In connection with that procedure, no
matters came to his attention which caused him to believe that the specified
data should be adjusted.
4. An owner or operator of a new facility
must submit the items specified in 335-14-5-.08(4)(f)3. to the Department at
least 60 days before the date on which hazardous waste is first received for
treatment, storage, or disposal.
5.
After the initial submission of items specified in 335-14-5-.08(4)(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 335-14-5-.08(4) (f)3.
6. If the owner or operator no longer meets
the requirements of 335-14-5-.08(4)(f)1., he must send notice to the Department
of intent to establish alternate financial assurance as specified in
335-14-5-.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 335-14-5-.08(4)(f)1., require reports of financial condition at
any time from the owner or operator in addition to those specified in
335-14-5-.08(4)(f)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 335-14-5-.08(4)(f) l., the owner or operator must provide alternate
financial assurance as specified in 335-14-5-.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
335-14-5-.08(4)(f)3.(ii)). An adverse opinion or a disclaimer of opinion will
be caused for disallowance. The Department will evaluate other qualifications
on an individual basis. The owner or operator must provide alternate financial
assurance as specified in 335-14-5-.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
335-14-5-.08(4)(f)3. when:
(i) An owner or
operator substitutes alternate financial assurance as specified in
335-14-5-.08(4); or
(ii) The
Department releases the owner or operator from the requirements of
335-14-5-.08(4) in accordance with 335-14-5-.08(4) (i).
10. An owner or operator may meet the
requirements of 335-14-5-.08(4) by obtaining a written guarantee, hereinafter
referred to as "corporate 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
335-14-5-.08(4)(f) l. through 8. and must comply with the terms of the
guarantee. The wording of the guarantee must be identical to the wording
specified in 335-14-5-.08(12) (h). The certified copy of the guarantee must
accompany the items sent to the Department as specified in 335-14-5-.08(4)(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, 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) If the owner or operator fails to perform
final closure of a facility covered by the corporate guarantee in accordance
with the closure plan and other permit requirements whenever required to do so,
the guarantor will do so or establish a trust fund as specified in
335-14-5-.08(4)(a) in the name of the owner or operator.
(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 335-14-5-.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 alternative financial assurance
in the name of the owner or operator.
(g) Use of multiple financial mechanisms. An
owner or operator may satisfy the requirements of 335-14-5-.08(4) by
establishing more than one financial mechanism per facility. These mechanisms
are limited to trust funds, surety bonds guaranteeing payment into a trust
fund, letters of credit, and insurance. The mechanisms must be as specified in
335-14-5-.08(4)(a), (b), (d), and (e), respectively, 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 closure 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 closure of the facility.
(h) Use of a financial mechanism for multiple
facilities. An owner or operator may use a financial assurance mechanism
specified in 335-14-5-.08(4) to meet the requirements of 335-14-5-.08(4) for
more than one facility. Evidence of financial assurance submitted to the
Department must include a list showing, for each facility, the EPA or Alabama
Identification Number, name, address, and the amount of funds for closure
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 closure of 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.
(i) Release of the owner or operator from the
requirements of 335-14-5-.08(4). Within 60 days after receiving certifications
from the owner or operator and an independent registered professional engineer
that final closure has been completed in accordance with the approved closure
plan, the Department will notify the owner or operator in writing that he is no
longer required by 335-14-5-.08(4) to maintain financial assurance for final
closure of the facility, unless the Department has reason to believe that final
closure has not been in accordance with the approved closure plan. The
Department shall provide the owner or operator a detailed written statement of
any such reason to believe that closure has not been in accordance with the
approved closure plan.
(6)
Financial
assurance for post-closure. The owner or operator of a hazardous
waste management unit subject to the requirements of 335-14-5-.08(5) must
establish financial assurance for post-closure care in accordance with the
approved post-closure plan for the facility 60 days prior to the initial
receipt of hazardous waste or the effective date of the requirement, whichever
is later. He must choose from the following options:
(a) Post-closure trust fund.
1. An owner or operator may satisfy the
requirements of 335-14-5-.08(6) by establishing a post-closure trust fund which
conforms to the requirements of 335-14-5-.08(6)(a) and submitting an originally
signed duplicate of the trust agreement to the Department. An owner or operator
of a new facility must submit the originally signed duplicate of the trust
agreement to the Department at least 60 days before the date on which hazardous
waste is first received for treatment, storage, or disposal. 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 335-14-5-.08(12) (a)1. and the trust
agreement must be accompanied by a formal certification of acknowledgment (for
example, see 335-14-5-.08(12) (a)2.). Schedule A of the trust agreement must be
updated, and an originally signed duplicate must be submitted to the
Department, within 60 days after a change in the amount of the current
post-closure cost estimate covered by the agreement.
3. The owner or operator of an operating
facility must make annual payments into the fund over the term of the initial
Hazardous Waste Facility Permit, over the remaining operating life of the
facility as estimated in the closure plan, or eight years, whichever period is
shorter. The owner or operator of a post-closure or SWMU corrective action
facility must make payments into the fund over a term of eight years beginning
on the effective date of the initial post-closure permit or enforceable
document (as defined in
335-14-8-.01(1)(c)7.).
The payments into the post-closure trust fund must be made as follows:
(i) For a new or existing operating facility,
the first payment must be made before the initial receipt of hazardous waste
for treatment, storage or disposal. A receipt from the trustee for this payment
must be submitted by the owner or operator to the Department before the initial
receipt of hazardous waste. For a post-closure facility or SWMU CA facility,
the first payment must be made no later than 60 days following the effective
date of the initial post-closure permit. A receipt from the trustee for this
payment must be submitted by the owner or operator to the Department no later
than 30 days following the payment date. Subsequent payments must be made no
later than 30 days after the anniversary date of the first payment. Payments
must be made according to the following schedule:
(I) If the initial permit is for a term of
one year, 100% of the current post-closure cost estimate must be paid
initially;
(II) If the initial
permit is for a term of two years, 50% of the current post-closure cost
estimate must be paid each of the two years;
(III) If the initial permit is for a term of
three years, 34% of the current post-closure cost estimate must be paid
initially and 33% of the current post-closure cost estimate must be paid each
of the two subsequent years.
(IV)
If the initial permit is for a term of four years, 25% of the current
post-closure cost estimate must be paid each of the four years;
(V) If the initial permit is for a term of
five years, 20% of the current post-closure cost estimate must be paid each of
the five years;
(VI) If the initial
permit is for a term of six years, 20% of the current post-closure cost
estimate must be paid each of the first four years and 10% of the current cost
estimate must be paid each of the two subsequent years;
(VII) If the initial permit is for a term of
seven years, 20% of the current post-closure cost estimate must be paid each of
the first three years and 10% of the current post-closure cost estimate must be
paid each of the four subsequent years; and
(VIII) If the initial permit is for a term of
eight years or longer, 20% of the current post-closure cost estimate must be
paid each of the first two years and 10% of the current post-closure cost
estimate must be paid each of the six subsequent years;
(ii) Following the initial payment, all
subsequent annual payments must reconcile any difference between the actual
value of the trust fund and the required value of the trust fund. The required
value of the trust fund accounts for adjustments to the post-closure cost
estimate made in accordance with 335-14-5-.08(5), and may be calculated by
determining the value of the trust fund if the current payment and all previous
payments were made using the current post-closure cost estimate.
(iii) If an owner or operator of an existing
facility establishes a trust fund as specified in
335-14-6-.08(6)(a),
and the value of the trust fund is less than the current post-closure cost
estimate when a permit is issued for the facility, the amount of the current
post-closure cost estimate still to be paid into the trust fund must be paid
according to the schedule set out in 335-14-5-.08(6)3.(i).
4. The owner or operator may
accelerate payments into the trust fund or he may deposit the full amount of
the current post-closure cost estimate at the time the fund is established.
However he must maintain the value of the fund at no less than the value that
the fund would have if annual payments were made as specified in
335-14-5-.08(6)(a)3.
5. If the
owner or operator establishes a post-closure trust fund after having used one
or more alternate mechanisms specified in 335-14-5-.08(6) or in
335-14-6-.08(6),
his first payment must be in at least the amount that the fund would contain if
the trust fund were established initially and annual payments made according to
specifications of 335-14-5-.08(6) (a) and
335-14-6-.08(6)
(a), as applicable.
6. After the pay-in period is completed,
whenever the current post-closure cost estimate changes during the operating
life of the facility, 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 post-closure cost estimate, or obtain other financial
assurance as specified in 335-14-5-.08(6) to cover the difference.
7. During the operating life of the facility
and throughout the post-closure care period, if the value of the trust fund is
greater than the total amount of the current post-closure cost estimate, the
owner or operator may submit a written request to the Department for release of
the amount in excess of the current post-closure cost estimate.
8. If an owner or operator substitutes other
financial assurance as specified in 335-14-5-.08(6) for all or part of the
trust fund, the owner or operator may submit a written request to the
Department for release of the amount in excess of the current post-closure cost
estimate covered by the trust fund.
9. Within 60 days after receiving a request
from the owner or operator for release of funds as specified in
335-14-5-.08(6)(a)7. or (a)8., the Department will approve or disapprove the
request for release. If the Department approves the owner or operator's request
for release, the Department will instruct the trustee to release to the owner
or operator such funds as the Department specifies in writing.
10. Following the completion of the
pay-in-period, the Department may approve a release of funds if the owner or
operator demonstrates to the Department that the value of the trust fund
exceeds the remaining cost of post-closure care.
11. Following the completion of the
pay-in-period, an owner or operator or any other person authorized to conduct
post-closure care may request reimbursements for post-closure care expenditures
by submitting itemized bills to the Department. Within 60 days after receiving
bills for post-closure care 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 post-closure care expenditures
are in accordance with the approved post-closure plan or otherwise justified.
If the Department does not instruct the trustee to make such reimbursements, it
will provide the owner or operator with a detailed written statement of
reasons.
12. The Department will
agree to termination of the trust when:
(i)
An owner or operator substitutes alternate financial assurance as specified in
335-14-5-.08(6) and approve by the Department; or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(6) in accordance with
335-14-5-.08(6) (i).
(b) Surety bond guaranteeing payment into a
post-closure trust fund.
1. An owner or
operator may satisfy the requirements of 335-14-5-.08(6) by obtaining a surety
bond which conforms to the requirements of 335-14-5-.08(6)(b) and submitting
the bond to the Department. An owner or operator of a new facility must submit
the bond to the Department at least 60 days before the date on which hazardous
waste is first received for disposal.
The bond must be effective before this initial receipt of
hazardous waste. 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 335-14-5-.08(12)(b).
3. The owner or operator who uses a surety
bond to satisfy the requirements of 335-14-5-.08(6) 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 335-14-5-.08(6) (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 335-14-5-.08(6), the following
are not required by these regulations:
(I)
Payments into the trust fund as specified in 335-14-5-.08(6) (a);
(II) Updating of Schedule A of the trust
agreement (see 335-14-5-.08(12)(a) ) to show current post-closure 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 the beginning of final
closure of the facility; or
(ii)
Fund the standby trust fund in an amount equal to the penal sum within 15 days
after an administrative order to begin final closure issued by the Department
becomes final, or within 15 days after an order to begin final closure is
issued by a U.S. district court or other court of competent jurisdiction;
or
(iii) Provide alternate
financial assurance as specified in this section, 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 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 post-closure cost estimate
except as provided in 335-14-5-.08(6) (g).
7. Whenever the current post-closure 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 post-closure cost
estimate and submit evidence of such increase to the Department, or obtain
other financial assurance as specified in 335-14-5-.08(6) to cover the
increase. Whenever the current post-closure cost estimate decreases, the penal
sum may be reduced to the amount of the current post-closure 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. The Department will provide such written consent when:
(i) An owner or operator substitutes
alternate financial assurance as specified in 335-14-5-.08(6); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(6) in accordance with
335-14-5-.08(6) (i).
(c) Surety bond guaranteeing performance of
post-closure care and/or corrective action.
1.
An owner or operator may satisfy the requirements of 335-14-5-.08(6) and
335-14-5-.08(11) by obtaining a surety bond which conforms to the requirements
of 335-14-5-.08(6)(c) and submitting the bond to the Department. An owner or
operator of a new or existing operating facility must submit the bond to the
Department at least 60 days before the date on which hazardous waste is first
received for disposal. The owner or operator of a post-closure or SWMU
corrective action facility must submit the bond to the Department at least 60
days following the issuance to the initial post-closure permit or enforceable
document (as defined in
335-14-8-.01(1)(c)7.).
The bond must be effective before this initial receipt of hazardous waste. 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
335-14-5-.08(12)(c).
3. The owner
or operator who uses a surety bond to satisfy the requirements of
335-14-5-.08(6) 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
335-14-5-.08(6) (a), except that:
(i) An
originally signed duplicate of the trust agreement must be submitted to the
Department with the surety bond; and
(ii) Unless the standby trust fund is funded
pursuant to the requirements of 335-14-5-.08(6), the following are not required
by these regulations:
(I) Payments into the
trust fund as specified in 335-14-5-.08(6) (a);
(II) Updating of Schedule A of the trust
agreement (see 335-14-5-.08(12)(a) ) to show current post-closure 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) Perform post-closure care
and/or corrective action in accordance with the post-closure plan, corrective
action plan, and other requirements of the permit for the facility;
or
(ii) Provide alternate financial
assurance as specified in 335-14-5-.08(6), and obtain the Department's written
approval of the assurance provided, within 90 days of 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. Following a
final administrative determination pursuant to Sections
22-30-19
and
22-22A-7,
Code of Ala. 1975, that the owner or operator has
failed to perform post-closure care and/or corrective action in accordance with
the approved post-closure plan, corrective action plan, and other permit or
enforceable document (as defined in
335-14-8-.01(1)(c)7.)
requirements under the terms of the bond the surety will perform post-closure
care and/or corrective action in accordance with the post-closure plan,
corrective action plan, and other permit or enforceable document (as defined in
335-14-8-.01(1)(c)7.)
requirements or will deposit the amount of the penal sum into the standby trust
fund.
6. The penal sum of the bond
must be in an amount at least equal to the current post-closure and/or
corrective action cost estimate.
7.
Whenever the current post-closure and/or corrective action cost estimate
increases to an amount greater than the penal sum during the operating life of
the facility or the post-closure care period, 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 post-closure and/or corrective action cost
estimate and submit evidence of such increase to the Department, or obtain
other financial assurance as specified in 335-14-5-.08(6). Whenever the current
post-closure and/or corrective action cost estimate decreases during the
operating life of the facility, the penal sum may be reduced to the amount of
the current post-closure and/or corrective action cost estimate following
written approval by the Department.
8. During the period of post-closure care
and/or corrective action, the Department may approve a decrease in the penal
sum if the owner or operator demonstrates to the Department that the amount
exceeds the remaining cost of post-closure care and/or corrective
action.
9. 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
notice of cancellation by both the owner or operator and the Department, as
evidenced by the return receipts.
10. The owner or operator may cancel the bond
if the Department has given prior written consent. The Department will provide
such written consent when:
(i) An owner or
operator substitutes alternate financial assurance as specified in
335-14-5-.08(6) and approved by the Department; or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(6) in accordance with
335-14-5-.08(6) (i) or 335-14-5-.08(11).
11. The surety will not be liable for
deficiencies in the performance of post-closure care by the owner or operator
after the Department releases the owner or operator from the requirements of
335-14-5-.08(6) in accordance with 335-14-5-.08(6) (i) or
335-14-5-.08(11)(f).
(d)
Post-closure and/or corrective action letter of credit.
1. An owner or operator may satisfy the
requirements of 335-14-5-.08(6) and 335-14-5-.08(11) by obtaining an
irrevocable standby letter of credit which conforms to the requirements of
335-14-5-.08(6)(d) and submitting the letter to the Department. An owner or
operator of a new facility must submit the letter of credit to the Department
at least 60 days before the date on which hazardous waste is first received for
disposal. The owner or operator of a post-closure or SWMU corrective action
facility must submit the letter of credit to the Department at least 60 days
following the issuance to the initial post-closure permit or enforceable
document (as defined in
335-14-8-.01(1)(c)7.).
The letter of credit must be effective before this initial receipt of hazardous
waste. 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 335-14-5-.08(12)(d).
3. An owner or operator who uses a letter of
credit to satisfy the requirements of 335-14-5-.08(6) 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 335-14-5-.08(6) (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 335-14-5-.08(6), the following
are not required by these regulations:
(I)
Payments into the trust fund as required in 335-14-5-.08(6) (a);
(II) Updating of Schedule A of the trust
agreement (see 335-14-5-.08(12)(a) ) to show current post-closure and/or
corrective action 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, name, and address of the facility,
and the amount of funds assured for post-closure care and/or corrective action
of the facility by the letter of credit.
5. The letter of credit must be irrevocable
and issued for a period of at least one year. The letter of credit must provide
that the expiration date will be automatically extended for a period of at
least one 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
post-closure and/or corrective action cost estimate, except as provided in
335-14-5-.08(6)(g).
7. Whenever the
current post-closure and/or corrective action cost estimate increases to an
amount greater than the amount of the credit during the operating life of the
facility or the post-closure care period, 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 post-closure and/or corrective action
cost estimate and submit evidence of such increase to the Department, or obtain
other financial assurance as specified in 335-14-5-.08(6) or 335-14-5-.08(11)
to cover the increase. Whenever the current post-closure and/or corrective
action cost estimate decreases during the operating life of the facility or the
post-closure care period, the amount of the credit may be reduced to the amount
of the current post-closure and/or corrective action cost estimate following
written approval by the Department.
8. During the period of post-closure care
and/or corrective action, the Department may approve a decrease in the amount
of the letter of credit if the owner or operator demonstrates to the Department
that the amount exceeds the remaining cost of post-closure care and/or
corrective action.
9. Following a
final administrative determination pursuant to Sections
22-30-19
and
22-22A-7,
Code of Ala. 1975, that the owner or operator has
failed to perform post-closure care and/or corrective action in accordance with
the approved post-closure plan and other permit or correction action order
requirements, the Department may draw on the letter of credit.
10. If the owner or operator does not
establish alternate financial assurance as specified in 335-14-5-.08(6) 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 335-14-5-.08(6) and obtain written approval of such assurance from
the Department.
11. 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 335-14-5-.08(6) and approved by
the Department; or
(ii) The
Department releases the owner or operator from the requirements of
335-14-5-.08(6) in accordance with 335-14-5-.08(6) (i) or
335-14-5-.08(11)(f).
(e) Post-closure insurance.
1. An owner or operator may satisfy the
requirements of 335-14-5-.08(6) by obtaining post-closure insurance which
conforms to the requirements of 335-14-5-.08(6)(e) and submitting an originally
signed certificate of such insurance to the Department. An owner or operator of
a new facility must submit the certificate of insurance to the Department at
least 60 days before the date on which hazardous waste is first received for
disposal. The insurance must be effective before this initial receipt of
hazardous waste. The insurer must be licensed to transact the business of
insurance, or eligible to provide insurance as an excess of surplus lines
insurer in the State of Alabama, and must not be captive insurance as defined
in
335-14-1-.02
unless the requirements of 335-14-5-.08(6) (e)1. (ii) are met.
(i) The use of insurance to demonstrate
financial assurance for closure and post-closure care pertains exclusively to
those insurance policies underwritten by commercial property and casualty
insurers (primary or excess and surplus lines), through which, in the insurance
contract, the financial burden for closure and post-closure care is transferred
to the third-party insurer. Except as provided in 335-14-5-.08(6)(e)1.(ii), the
third-party insurer must assume financial responsibility for this accepted
risk, using its own pool of resources that is independent, separate, and
unrelated to that of the insured (owner or operator). The use of insurance
policies underwritten by captive insurers therefore is prohibited unless the
owner/operator can demonstrate compliance with condition
335-14-5-.08(6)(e)1.(ii) for each year captive insurance is used.
(ii) Captive insurance may be used for
post-closure insurance only when the facility provides annual documentation to
the Department that the owner or operator is in compliance with the
requirements of Rule 335-14-5-.08(6)(f).
2. The wording of the certificate of
insurance must be identical to the wording specified in 335-14-5-.08(12)
(e).
3. The post-closure insurance
policy must be issued for a face amount at least equal to the current
post-closure cost estimate, except as provided in 335-14-5-.08(6) (g). 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 post-closure
insurance policy must guarantee that funds will be available to provide
post-closure care of the facility whenever the post-closure period begins. The
policy must also guarantee that once post-closure care begins, 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. An
owner or operator or any other person authorized to conduct post-closure care
may request reimbursements for post-closure care expenditures by submitting
itemized bills to the Department. Within 60 days after receiving bills for
post-closure care activities, the Department will instruct the insurer to make
reimbursements in those amounts as the Department specifies in writing, if the
Department determines that the post-closure care expenditures are in accordance
with the approved post-closure plan or otherwise justified. If the Department
does not instruct the insurer to make such reimbursements, he will provide the
owner or operator with 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 335-14-5-.08(6)(e)11.
Failure to pay the premium, without substitution of alternate financial
assurance as specified in 335-14-5-.08(6), 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) The permit is
terminated or revoked or a new permit is denied; or
(iii) Closure is ordered by the Department or
a court of competent jurisdiction; or
(iv) The owner or operator is named as 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 post-closure cost estimate increases to an amount greater than the face
amount of the policy during the operating life of the facility, 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 post-closure cost
estimate and submit evidence of such increase to the Department, or obtain
other financial assurance as specified in 335-14-5-.08(6) to cover the
increase. Whenever the current post-closure cost estimate decreases during the
operating life of the facility, the face amount may be reduced to the amount of
the current post-closure cost estimate following written approval by the
Department.
10. Commencing on the
date that liability to make payments pursuant to the policy accrues, the
insurer will thereafter annually increase the face amount of the policy, less
any payments made, multiplied by an amount equivalent to 85 percent of the most
recent investment rate or of the equivalent coupon-issue yield announced by the
U.S. Treasury for 26-week Treasury securities.
11. 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 335-14-5-.08(6); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(6) in accordance with
335-14-5-.08(6) (i).
(f) Financial test and corporate guarantee
for post-closure care.
1. An owner or
operator may satisfy the requirements of 335-14-5-.08(6) by demonstrating that
he passes a financial test as specified in 335-14-5-.08(6)(f). To pass this
test the owner or operator must meet the criteria of either 335-14-5-.08(6)
(f)1.(i) or (f)1.(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 closure and post-closure
cost estimates; and
(III) Tangible
net worth of at least $10 million; and
(IV) Assets in the United States amounting to
at least 90 percent of his total assets or at least six times the sum of the
current closure and post-closure 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 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 closure and
post-closure cost estimates; and
(III) Tangible net worth of at least $10
million; and
(IV) Assets in the
United States amounting to at least 90 percent of his total assets or at least
six times the sum of the current closure and post-closure cost
estimates.
2.
The phrase "current closure and post-closure cost estimates" as used in
335-14-5-.08(6)(f)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 (335-14-5-.08(12) (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 335-14-5-.08(12)(f); 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) A special report from the owner's or
operator's independent certified public accountant to the owner or operator
stating that:
(I) He has compared the data
which the letter from the chief financial officer specifies as having been
derived from the independently audited, year-end financial statements for the
latest fiscal year with the amounts in such financial statements; and
(II) In connection with that procedure, no
matters came to his attention which caused him to believe that the specified
data should be adjusted.
4. An owner or operator of a new facility
must submit the items specified in 335-14-5-.08(6) (f)3. at least 60 days
before the date on which hazardous waste is first received for
disposal.
5. After the initial
submission of items specified in 335-14-5-.08(6)(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 335-14-5-.08(6) (f)3.
6. If the owner or operator no longer meets
the requirements of 335-14-5-.08(6)(f)1., he must send notice to the Department
of intent to establish alternate financial assurance as specified in
335-14-5-.08(6). 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 335-14-5-.08(6)(f)1., require reports of financial condition at
any time from the owner or operator in addition to those specified in
335-14-5-.08(6)(f)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 335-14-5-.08(6)(f) l., the owner or operator must provide alternate
financial assurance as specified in 335-14-5-.08(6) 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
335-14-5-.08(6)(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 alternate financial
assurance as specified in 335-14-5-.08(6) within 30 days after notification of
the disallowance.
9. During the
period of post-closure care, the Department may approve a decrease in the
current post-closure cost estimate for which this test demonstrates financial
assurance if the owner or operator demonstrates to the Department that the
amount of the cost estimate exceeds the remaining cost of post-closure
care.
10. The owner or operator is
no longer required to submit the items specified in 335-14-5-.08(6)(f)3. of
when:
(i) An owner or operator substitutes
alternate financial assurance as specified in 335-14-5-.08(6); or
(ii) The Department releases the owner or
operator from the requirements of 335-14-5-.08(6) in accordance with
335-14-5-.08(6) (i).
11.
An owner or operator may meet the requirements of 335-14-5-.08(6) by obtaining
a written guarantee, hereinafter referred to as "corporate 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 335-14-5-.08(6)(f)1. through 9. and must comply with the terms of
the guarantee. The wording of the guarantee must be identical to the wording
specified in 335-14-5-.08(12)(h). A certified copy of the guarantee must
accompany the items sent to the Department as specified in 335-14-5-.08(6)
(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, 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) If the owner or operator fails to
perform post-closure care of a facility covered by the corporate guarantee in
accordance with the post-closure plan and other permit requirements whenever
required to do so, the guarantor will do so or establish a trust fund as
specified in 335-14-5-.08(6)(a) in the name of the owner or operator.
(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 335-14-5-.08(6) 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.
(g) Use of multiple financial mechanisms. An
owner or operator may satisfy the requirements of 335-14-5-.08(6) by
establishing more than one financial mechanism per facility.
These mechanisms are limited to trust funds, surety bonds
guaranteeing payment into a trust fund, letters of credit, and insurance. The
mechanisms must be as specified in 335-14-5-.08(6)(a), (b), (d), and (e),
respectively, 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 post-closure 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 post-closure
care of the facility.
(h)
Use of a financial mechanism for multiple facilities. An owner or operator may
use a financial assurance mechanism specified in 335-14-5-.08(6) to meet the
requirements of 335-14-5-.08(6) for more than one facility. Evidence of
financial assurance submitted to the Department must include a list showing,
for each facility, the EPA or Alabama Identification Number, name, address, and
the amount of funds for post-closure care 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 post-closure care of 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.
(i) Release of the owner or operator from the
requirements of 335-14-5-.08(6). Within 60 days after receiving certifications
from the owner or operator and an independent registered professional engineer
that the post-closure care period has been completed for a hazardous waste
disposal unit in accordance with the approved plan, the Department will notify
the owner or operator that he is no longer required to maintain financial
assurance for post-closure of that unit, unless the Department has reason to
believe that post-closure care has not been in accordance with the approved
post-closure plan. The Department shall provide the owner or operator a
detailed written statement of any such reason to believe that post-closure care
has not been in accordance with the approved post-closure plan.
(8)
Liability
requirements.
(a) Coverage for
sudden accidental occurrences. An owner or operator of a hazardous waste
treatment, storage, or disposal facility, 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 335-14-5-.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
335-14-5-.08(8) (a).
(i) Each insurance
policy must be amended by attachment of the Hazardous Waste Facility Liability
Endorsement or evidence by a Certificate of Liability Insurance. The wording of
the endorsement must be identical to the wording specified in
335-14-5-.08(12)(i). The wording of the certificate of insurance must be
identical to the wording specified in 335-14-5-.08(12) (j). 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. An owner or operator of a new facility must submit the signed duplicate
original of the Hazardous Waste Facility Liability Endorsement or the
Certificate of Liability Insurance to the Department at least 60 days before
the date on which hazardous waste is first received for treatment, storage or
disposal. The insurance must be effective before this initial receipt of
hazardous waste.
(ii) Each
insurance policy must be issued by an insurer which is licensed to transact the
business of insurance, or eligible to provide insurance as an excess or surplus
lines insurer in the State of Alabama.
2. An owner or operator may meet the
requirements of 335-14-5-.08(8) by passing a financial test or using the
guarantee for liability coverage as specified in 335-14-5-.08(8) (f) and (g)
.
3. An owner or operator may meet
the requirements of 335-14-5-.08(8) by obtaining a letter of credit for
liability coverage as specified in 335-14-5-.08(8)(h).
4. An owner or operator may meet the
requirements of 335-14-5-.08(8) by obtaining a surety bond for liability
coverage as specified in 335-14-5-.08(8) (i).
5. An owner or operator may meet the
requirements of 335-14-5-.08(8) by obtaining a trust fund for liability
coverage as specified in 335-14-5-.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 335-14-5-.08(8). If the owner or
operator demonstrates the required coverage through the use of a combination of
financial assurances under 335-14-5-.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 335-14-5-.08(8) (a)1. through (a)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 waste treatment, storage,
or disposal facility is entered between the owner or operator and third-party
claimant for liability coverage under 335-14-5-.08(8)(a)1. through (a)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
waste treatment, storage, or disposal facility is issued against the owner or
operator or an instrument that is providing financial assurance for liability
coverage under 335-14-5-.08(8) (a)1. through (a)6.
(b) Coverage for nonsudden
accidental occurrences. An owner or operator of a surface impoundment,
landfill, land treatment facility, or disposal miscellaneous unit that is used
to manage hazardous waste, or a group of such facilities, must demonstrate
financial responsibility for bodily injury and property damage to third parties
caused by nonsudden accidental occurrences arising from operations of the
facility or group of facilities. The owner or operator must have and maintain
liability coverage for nonsudden 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 335-14-5-.08(8) may combine the required per-occurrence
coverage levels for sudden and nonsudden accidental occurrences into a single
per-occurrence level, and combine the required annual aggregate coverage levels
for sudden and nonsudden 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 335-14-5-.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 335-14-5-.08(8) (b).
(i) Each
insurance policy must be amended by attachment of the Hazardous Waste Facility
Liability Endorsement or evidenced by a Certificate of Liability Insurance. The
wording of the endorsement must be identical to the wording specified in
335-14-5-.08(12)(i). The wording of the certificate of insurance must be
identical to the wording specified in 335-14-5-.08(12)(j). 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. An owner or operator of a new facility must submit the signed duplicate
original of the Hazardous Waste Facility Liability Endorsement or the
Certificate of Liability Insurance to the Department at least 60 days before
the date on which hazardous waste is first received for treatment, storage, or
disposal. The insurance must be effective before this initial receipt of
hazardous waste.
(ii) Each
insurance policy must be issued by an insurer which is licensed to transact the
business of insurance, or eligible to provide insurance as an excess or surplus
lines insurer in the State of Alabama.
2. An owner or operator may meet the
requirements of 335-14-5-.08(8) by passing a financial test or using the
guarantee for liability coverage as specified in 335-14-5-.08(8)(f) and
(g).
3. An owner or operator may
meet the requirements of 335-14-5-.08(8) by obtaining a letter of credit for
liability coverage as specified in 335-14-5-.08(8) (h).
4. An owner or operator may meet the
requirements of 335-14-5-.08(8) by obtaining a surety bond for liability
coverage as specified in 335-14-5-.08(8)(i).
5. An owner or operator may meet the
requirements of 335-14-5-.08(8) by obtaining a trust fund for liability
coverage as specified in 335-14-5-.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 amount required by 335-14-5-.08(8). If the owner or
operator demonstrates the required coverage through the use of a combination of
financial assurances under 335-14-5-.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 335-14-5-.08(8)(b)1. through (b)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 waste treatment, storage,
or disposal facility is entered between the owner or operator and third-party
claimant for liability coverage under 335-14-5-.08(8)(b)1. through (b)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
waste treatment, storage, or disposal facility is issued against the owner or
operator or an instrument that is providing financial assurance for liability
coverage under 335-14-5-.08(8) (b)1. through (b)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 335-14-5-.08(8) (a) or (b)
are not consistent with the degree and duration of risk associated with
treatment, storage, or disposal 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 to the Department as part of the application under
335-14-8-.02(5)
for a facility that does not have a permit, or pursuant to the procedures for
permit modification under
335-14-8-.08(3)
for a facility that has a permit. 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 335-14-5-.08(8)(a) or (b). Any request for a variance for a
permitted facility will be treated as a request for a permit modification under
335-14-8-.04(2)
(a)5. and
335-14-8-.08(3).
(d) Adjustments by the Department. If the
Department determines that the levels of financial responsibility required by
335-14-5-.08(8)(a) or (b) are not consistent with the degree and duration of
risk associated with treatment, storage, or disposal at the facility or group
of facilities, the Department may adjust the level of financial responsibility
required under 335-14-5-.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 nonsudden accidental occurrences resulting from the
operations of a facility that is not a surface impoundment, landfill, or land
treatment facility, he may require that an owner or operator of the facility
comply with 335-14-5-.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. Any adjustment of the level or type of coverage for a
facility that has a permit will be treated as a permit modification under
335-14-8-.04(2)
(a)5. and
335-14-8-.08(3).
(e) Period of coverage. Within 60 days after
receiving certifications from the owner or operator and a qualified
professional engineer that final closure has been completed in accordance with
the approved closure plan, the Department will notify the owner or operator in
writing that he is no longer required by 335-14-5-.08(8) to maintain liability
coverage for that facility, unless the Department has reason to believe that
closure has not been in accordance with the approved closure plan.
(f) Financial test for liability coverage.
1. An owner or operator may satisfy the
requirements of 335-14-5-.08(8) by demonstrating that he passes a financial
test as specified in 335-14-5-.08(8)(f). To pass this test the owner or
operator must meet the criteria of 335-14-5-.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 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 335-14-5-.08(8)(f)1. refers to the annual
aggregate amounts for which coverage is required under 335-14-5-.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
335-14-5-.08(12)(g). If an owner or operator is using the financial test to
demonstrate both assurance for closure or post-closure care, as specified by
335-14-5-.08(4) (f) and 335-14-5-.08(6) (f), and liability coverage, he must
submit the letter specified in 335-14-5-.08(12)(g) to cover both forms of
financial responsibility; a separate letter as specified in 335-14-5-.08(12)(f)
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) A special report from
the owner's or operator's independent certified public accountant to the owner
or operator stating that:
(I) He has compared
the data which the letter from the chief financial officer specified as having
been derived from the independently audited, year-end financial statements for
the latest fiscal year with the amounts in such financial statements;
and
(II) In connection with that
procedure, no matters came to his attention which caused him to believe that
the specified data should be adjusted.
4. An owner or operator of a new facility
must submit the items specified in 335-14-5-.08(8)(f)3. to the Department at
least 60 days before the date on which hazardous waste is first received for
treatment, storage, or disposal.
5.
After the initial submission of items specified in 335-14-5-.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 335-14-5-.08(8)(f)3.
6. The Department may, based on a reasonable
belief that the owner or operator may no longer meet the requirements of
335-14-5-.08(8)(f)1., require from the owner or operator at any time current
updates of reports of financial condition specified in 335-14-5-.08(8)
(f)3.
7. If the owner or operator
no longer meets the requirements of 335-14-5-.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
335-14-5-.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.
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
335-14-5-.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 this
section within 30 days after notification of disallowance.
(g) Guarantee for liability coverage.
1. Subject to 335-14-5-.08(8) (g)2., an owner
or operator may meet the requirements of 335-14-5-.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
335-14-5-.08(8) (f) l. through (f)7. The wording of the guarantee must be
identical to the wording specified in 335-14-5-.08(12)(h)2. A certified copy of
the guarantee must accompany the items sent to the Department as specified in
335-14-5-.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 nonsudden accidental occurrences
(or both as the case may be), arising from the operation of facilities covered
by this 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 335-14-5-.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 335-14-5-.08(8) and
335-14-5-.08(12)(h)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 335-14-5-.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
(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 335-14-5-.08(8), and 335-14-5-.08(12)(h)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 335-14-5-.08(8) by obtaining an
irrevocable standby letter of credit that conforms to the requirements of
335-14-5-.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 335-14-5-.08(12) (k).
4. An owner or operator who uses a letter of
credit to satisfy the requirements of 335-14-5-.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 335-14-5-.08(12)(n).
(i) Surety bond for liability
coverage
1. An owner or operator may satisfy
the requirements of 335-14-5-.08(8) by obtaining a surety bond that conforms to
the requirements of 335-14-5-.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
335-14-5-.08(12)(1).
4. A surety
bond may be used to satisfy the requirements of 335-14-5-.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
335-14-5-.08(8) (i) and 335-14-5-.08(12) (1) 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 335-14-5-.08(8) by establishing a trust fund that conforms to
the requirements of 335-14-5-.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
335-14-5-.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 335-14-5-.08(8)
to cover the difference. For purposes of 335-14-5-.08(8)(j), "the full amount
of the liability coverage to be provided" means the amount of coverage for
sudden and/or nonsudden occurrences required to be provided by the owner or
operator by 335-14-5-.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 335-14-5-.08(12)
(m).
(k)
[Reserved]
(11)
Financial assurance for corrective action. The owner
or operator of a facility at which corrective action is required pursuant to
335-14-5-.06(11)
or (12) must establish financial assurance
for corrective action in accordance with the approved corrective action plan
for the facility 60 days following the specification of the corrective actions
in the facility permit or enforceable document (as defined in
335-14-8-.01(1)(c)7.).
He must choose from the following options:
(a) Corrective action trust fund.
1. An owner or operator may specify the
requirements of 335-14-5-.08(11) by establishing a corrective action trust fund
which conforms to the requirements of 335-14-5-.08(11)(a) and submitting an
originally signed duplicate of the trust agreement to the Department. An owner
or operator of a new facility must submit the originally signed duplicate of
the trust agreement to the Department no later than 30 days following
establishment of the trust fund. 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 335-14-5-.08(12)(a)1. and the trust
agreement must be accompanied by a formal certification of acknowledgment (for
example, see 335-14-5-.08(12) (a)2.). Schedule A of the trust agreement must be
updated, and an originally signed duplicate must be submitted to the
Department, within 60 days after a change in the amount of the current
corrective action cost estimate covered by the agreement.
3. Payments into the fund must be made
annually by the owner or operator over the pay-in-period, which is the term
equal to one-half of the estimated corrective action period. The first payment
must be made at the time the trust fund is established. A receipt from the
trustee for this payment must be submitted by the owner or operator of the
Department no later than 30 days following the payment date. Subsequent
payments must be made no later than 30 days after the anniversary date of the
first payment. The amount of each payment shall be determined by the following
formula:
Payment amount = CE - CV/y
where CE is the most recent corrective action cost estimate
in accordance with 335-14-5-.08(10), at the time of the payment; CV is the
current value of the trust fund, at the time of the payment; and Y is the
number of remaining years in the pay-in-period, at the time of the
payment.
4. The owner or
operator may accelerate payments into the trust fund or he may deposit the full
amount of the current corrective action cost estimate at the time the fund is
established. However he must maintain the value of the fund at no less than the
value that the fund would have if annual payments were made as specified in
335-14-5-.08(11)(a)3.
5. If the
owner or operator establishes a corrective action trust fund after having used
one or more alternate mechanisms specified in 335-14-5-.08(11), his first
payment must be in at least the amount that the fund would contain if the trust
fund were established initially and annual payments made according to
specifications of 335-14-5-.08(11) (a), as applicable.
6. After the pay-in period is completed,
whenever the current corrective action cost estimate changes during the
operating life of the facility, 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 and amount into the fund so that its value after this deposit at least
equals the amount of the current corrective action cost estimate, or obtain
other financial assurance as specified in 335-14-5-.08(11) to cover the
difference.
7. During the
corrective action period, if the value of the trust fund is greater than the
total amount of the current corrective action cost estimate, the owner or
operator may submit a written request to the Department for release of the
amount in excess of the current corrective action cost estimate.
8. If an owner or operator substitutes other
financial assurance as specified in 335-14-5-.08(11) 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 corrective action cost estimate covered by
the trust fund.
9. Within 60 days
after receiving a request from the owner or operator for release of funds as
specified in 335-14-5-.08(11)(a)7. or (a)8., the Department shall approve or
disapprove the request for release. If the Department approves the owner or
operator's request for release the Department will instruct the trustee to
release to the owner or operator such funds as the Department specifies in
writing.
10. After the
pay-in-period is completed, the Department may approve a release of funds
during the corrective action period, if the owner or operator demonstrates to
the Department that the value of the trust fund exceeds the remaining cost of
corrective action.
11. After the
pay-in-period is completed, an owner or operator or any other person authorized
to conduct corrective action may request reimbursements for corrective action
expenditures by submitting itemized bills to the Department. Within 60 days
after receiving bills for corrective action care 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
corrective action expenditures are in accordance with the approved corrective
action plan or otherwise justified. If the Department does not instruct the
trustee to make such reimbursements, he will provide the owner or operator with
a detailed written statement of reasons.
12. The Department will agree to termination
of the trust when:
(i) The owner or operator
substitutes alternate financial assurance as specified in 335-14-5-.08(11) and
approved by the Department; or
(ii)
The Department releases the owner or operator from the requirements of
335-14-5-.08(11) in accordance with 335-14-5-.08(11)(f).
(b) Surety bond guaranteeing
performance of corrective action. An owner or operator may satisfy the
requirements of 335-14-5-.08(11) by obtaining a surety bond which conforms to
the requirements of 335-14-5-.08(6)(c) and submitting the bond to the
Department.
(c) Corrective action
letter of credit. An owner or operator may satisfy the requirements of
335-14-5-.08(11) by obtaining an irrevocable standby letter of credit which
conforms to the requirements of 335-14-5-.08(6)(d) and submitting the letter to
the Department.
(d) Use of multiple
financial mechanisms. An owner or operator may satisfy the requirements of
335-14-5-.08(11) by establishing more than one financial mechanism per
facility. These mechanisms are limited to trust funds, surety bonds
guaranteeing performance of corrective action, and letters of credit. The
mechanisms must be as specified in 335-14-5-.08(11)(a), (b), and (c),
respectively, 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 corrective action 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 corrective
action of the facility.
(e) Use of
a financial mechanism for multiple facilities. An owner or operator may use a
financial assurance mechanism specified in 335-14-5-.08(11) to meet the
requirements of 35-14-5-.08(11) for more than one facility. Evidence of
financial assurance submitted to the Department must include a list showing,
for each facility, the EPA or Alabama Identification Number, name, address, and
the amount of funds for corrective action 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
corrective action 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.
(f) Release of
the owner or operator from the requirements of 335-14-5-.08(11). Within 60 days
after receiving certifications from the owner or operator and an independent
registered professional engineer that corrective action has been completed for
a hazardous waste disposal unit or solid waste management units in accordance
with the approved plan, the Department will notify the owner or operator that
he is no longer required to maintain financial assurance for corrective action
of that unit, unless the Department has reason to believe that corrective
action has not been in accordance with the approved plan, permit, or corrective
action order requirements. The Department shall provide the owner or operator
with a detailed written statement of any such reason to believe that corrective
action has not been in accordance with the approved plan, permit, or
order
(12)
Wording of the instruments.
(a)
1. A
Trust agreement for a trust fund, as specified in 335-14-5-.08(4)(a),
335-14-5-.08(6)(a), or 335-14-5-.08(11) (a), or
335-14-6-.08(4)
(a) or
335-14-6-.08(6)
(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
hazardous waste management facility shall provide assurance that funds will be
available when needed for closure and/or post-closure care, and/or corrective
action of the facility,
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, name, address, and the current closure,
post-closure, and/or corrective action 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. 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. Payment for Closure and
Post-Closure Care. The Trustee shall make payments from the Fund as the
Department shall direct, in writing, to provide for the payment of the costs of
closure, post-closure, and/or corrective action care of the facilities covered
by this Agreement. The Trustee shall reimburse the Grantor or other persons as
specified by the Department from the Fund for closure and post-closure
expenditures in such amounts as the Department 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 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 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 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 or 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 the 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 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
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 his designee, 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. The Trustee shall notify the Grantor and
the Department by certified mail within 10 days following the expiration of the
30-day period after the anniversary of the establishment of the Trust, if no
payment is received from the Grantor during that period. After the pay-in
period is completed, the Trustee shall not be required to send a notice of
nonpayment.
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 his designee, or by
the Trustee and the Department or his designee, 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.
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 Alabama.
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 Administrative Code subparagraph
335-14-5-.08(12)(a)1. as such rules 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 335-14-5-.08(4) (a) and (6) (a) or
335-14-6-.08(4)(a) and
(6)(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 335-14-5-.08(4) (b) or 335-14-5-.08(6) (b) or
335-14-6-.08(4)(b)
or
335-14-6-.08(6)(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 or 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 closure,
post-closure, and/or corrective action amounts(s) for each facility guaranteed
by this bond [indicate closure and post-closure amounts separately]:
|
Total penal sum of bond:
|
$
|
|
Surety's bond number:
|
Know All Persons By These Presents, That we the Principal and
Surety(ies) hereto are firmly bound to the Alabama Department of Environmental
Management (the Department), 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 hazardous
waste management facility identified above, and Whereas said Principal is
required to provide financial assurance for closure, or closure and
post-closure care, as a condition of the permit or interim status, 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 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 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 Administrative Code rule 335-14-5-.08 or
335-14-6-.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 closure, post-closure,
and/or corrective action 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 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 Administrative Code subparagraph 335-14-5-.08(12)(b)
as such rules 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:
|
$
|
PERFORMANCE 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 and address, and closure,
post-closure, and/or corrective action amount(s) for each facility guaranteed
by this bond [indicate closure, post-closure and corrective action amounts
separately]:
|
Total penal sum of bond:
|
$
|
|
Surety's bond number:
|
Know All Persons By These Presents, That we, the Principal
and Surety(ies) hereto are firmly bound to the Alabama Department of
Environmental Management (the "Department"), 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 joining action or actions against any or all of us, and for all other
purposes each 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 in order to own or operate each hazardous waste management
facility identified above, and Whereas said Principal is required to provide
financial assurance for closure, or closure and post-closure care, as a
condition of the permit, 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 this obligation are such
that if the Principal shall faithfully perform closure, whenever required to do
so, of each facility for which this bond guarantees closure, in accordance with
the closure plan and other requirements of the permit as such plan and permit
may be amended, pursuant to all applicable laws, statutes, rules, and
regulations, as such laws, statutes, rules, and regulations may be
amended,
And, if the Principal shall faithfully perform post-closure
care of each facility for which this bond guarantees post-closure care, in
accordance with the post-closure plan and other requirements of the permit, as
such plan and permit may be amended, pursuant to all applicable laws, statutes,
rules, and regulations, as such laws, statutes, rules, and regulations may be
amended,
And, if the Principal shall faithfully perform corrective
action at each facility for which this bond guarantees corrective action, in
accordance with the corrective action plan and other requirements of the permit
or correction action order, as such plan, permit, and/or order may be amended,
pursuant to all applicable laws, statutes, rules, and regulations, as such
laws, statutes, rules, and regulations may be amended.
Or, if the Principal shall provide alternate financial
assurance as specified in ADEM Administrative Code Rule 335-14-5-.08, 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
been found in violation of the closure requirements of ADEM Administrative Code
335-14-5, for a facility for which this bond guarantees performance of closure,
the Surety(ies) shall either perform closure in accordance with the closure
plan and other permit requirements or place the closure amount guaranteed for
the facility into the standby trust fund as directed by the Department.
Upon notification by the Department that the Principal has
been found in violation of the post-closure requirements of ADEM Administrative
Code 335-14-5, for a facility for which this bond guarantees performance of
post-closure care, the Surety(ies) shall either perform post-closure care in
accordance with the post-closure plan and other permit requirements or place
the post-closure amount guaranteed for the facility into the standby trust fund
as directed by the Department.
Upon notification by the Department that the Principal has
failed to provide alternate financial assurance as specified in ADEM
Administrative Code 335-14-5-.08, and obtain written approval of such assurance
from the Department during the 90 days following receipt by both the Principal
and the Department of a notice of cancellation of the 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.
Upon notification by the Department that the Principal has
been found in violation of the corrective action requirements of ADEM
Administrative Code 335-14-5, for a facility for which the bond guarantees
performance of corrective action, the Surety(ies) shall either perform
corrective action in accordance with the corrective action plan and other
permit or corrective action order requirements or place the corrective action
amount guaranteed for the facility into the standby trust fund as directed by
the Department.
The surety(ies) hereby waive(s) notification of amendments to
closure, post-closure, and/or corrective action plans, permits, orders,
applicable laws, statutes, rules, and regulations and agrees that no such
amendment shall in any way alleviate its (their) obligation on this
bond.
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 owner or operator 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 from 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 closure, post-closure,
and/or corrective action 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 Performance 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 Administrative Code 335-14-5-.08(12)(c) as such rule
was 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
surety bond guaranteeing performance closure, post-closure, and/or corrective
action, as specified in 335-14-5-.08(4) (c), 335-14-5-.08(6) (c), or
335-14-5-.08(11) (b) must be worded as follows, except that the instructions in
brackets are to be replaced with the relevant information and the brackets
deleted:
(d) A letter of credit, as
specified in 335-14-5-.08(4) (d), 335-14-5-.08(6) (d), or 335-14-5-.08(11) (c)
or
335-14-6-.08(4)(c)
or
335-14-6-.08(6)(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, 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 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 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 Administrative Code subparagraph
335-14-5-.08(12)(d) as such rules 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"].
(e) A certificate of insurance as specified
in 335-14-5-.08(4) (e), 335-14-5-.08(6) (e) or
335-14-6-.08(4)
(d) or
335-14-6-.08(6)(d),
must be worded as follows, except that the instructions in brackets are to be
replaced with the relevant information and the brackets deleted:
CERTIFICATE OF INSURANCE FOR CLOSURE OR POST-CLOSURE
CARE
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, name, address, and the amount of insurance for closure
and/or the amount for post-closure care (these amounts for all facilities
covered 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
for [insert "closure" or "closure and post-closure care" or "post-closure
care"] for the facilities identified above. The Insurer further warrants that
such policy conforms in all respects with the requirements of ADEM Admin. Code
subparagraphs 335-14-5-.08(4) (e), 335-14-5-.08(6) (e),
335-14-6-.08(4)
(d), and
335-14-6-.08(6)
(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 subparagraphs
335-14-5-.08(12) (e) as such rules 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]
(f)
A letter from the chief financial officer, as specified in 335-14-5-.08(4)(f)
or 335-14-5-.08(6) (f) or
335-14-6-.08(4)
(e) or
335-14-6-.08(6)
(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 THE 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 [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.
335-14-5-.08 and
335-14-6-.08.
[Fill out the following five 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, name, address, and current cost
estimates. Identify each cost estimate as to whether it is for one or more of
the following: closure, post-closure, and plugging and abandonment.]
1. This firm is the owner or operator of the
following facilities for which financial assurance for [identify one or more of
the following: closure, and 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 post-closure cost estimates covered by the test are
shown for each facility: _______________________________________.
2. This firm guarantees, through the
corporate guarantee specified in ADEM Admin. Code R. 335-14-5-.08 and
335-14-6-.08,
the [identify one or more of the following: closure, and post-closure] cost(s)
at the following facilities owned or operated by subsidiaries of this firm. The
current cost estimates for the 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].
3. In states
outside of Alabama, where U.S. EPA or some designated authority is
administering financial responsibility requirements, this firm, as owner or
operator or guarantor, is demonstrating financial assurance for the [identify
one or more of the following: closure, post-closure, and plugging and
abandonment] cost(s) at the following facilities through a financial test
and/or corporate guarantee substantially equivalent to the ones specified in
ADEM Admin. Code R. 335-14-5-.08 and
335-14-6-.08.
The current cost estimates covered by such a test or guarantee are shown for
each facility:
__________________________________________________________
4. This firm is the owner or operator of the
following hazardous waste management facilities for which financial assurance
for [identify one or more of the following: closure, post-closure, and plugging
and abandonment] cost(s) is not demonstrated to the 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 Federal or State mechanism. 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:
______________________________
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
335-14-5-.08(4)(f)1.(i) or (6)(f)1.(i) of or 335-14-5-.08(4) (e)1.(i) or
(6)(e)1.(i) are used. Fill in Alternative II if the criteria of
335-14-5-.08(4)(f)1.(ii) or (6)(f)1.(ii) or
335-14-6-.08(4)(e)1.(ii)
or (6)(e)1.(ii) are used.]
ALTERNATIVE I
1. Sum of current cost estimates [total of
all cost estimates shown in the five 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. Is line 2 divided by line 4 less than
2.0?
|
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 five 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 line 10.
|
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 subparagraph 335-14-5-.08(12) (f)
as such rules were constituted on the date shown immediately below.
[Signature]_____________________________________________________
[ Name
]___________________________________________________________
[Title]__________________________________________________________
[Date]___________________________________________________________
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
|
$
|
|
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 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 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 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 assets located in the U.S.?
If not, complete line 10
|
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 closure or post-closure
care.]
Part B. Closure or Post-Closure Care and Liability
Coverage
[Fill in Alternative I if the criteria of
335-14-5-.08(4)(f)1.(i) or 335-14-5-.08(6)(f)1.(i) and 335-14-5-.08(8)(f)1.(i)
are used or if the criteria of
335-14-6-.08(4)(e)1.(i)
or
335-14-6-.08(6)
(e)1. (i) and
335-14-6-.08(8)(f)1.(i)
are used. Fill in Alternative II if the criteria of 335-14-5-.08(4)(f)1.(ii) or
335-14-5-.08(6)(f)1.(ii) and 335-14-5-.08(8)(f)1.(ii) are used or if the
criteria of
335-14-6-.08(4)
(e)1. (ii) or
335-14-6-.08(6)
(e)1. (ii) and
335-14-6-.08(8)(f)1.
(ii) are used.]
ALTERNATIVE I
|
1. Sum of current closure and post-closure 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
closure or post-closure 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 U.S. (required only if less
than 90% of 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 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 closure and post-closure 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
closure or post-closure 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 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 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 subparagraph 335-14-5-.08(12) (g)
as such rules were constituted on the date shown immediately below.
[Signature]_____________________________________________________
[ Name
]___________________________________________________________
[Title]_____________________________________________________
[Date]______________________________________________________
(g) A letter from the chief financial
officer, as specified in 335-14-5-.08(8) (f) or
335-14-6-.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 THE 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 [insert "and
closure, and/or post-closure care" if applicable] as specified in ADEM Admin.
Code R. 335-14-5-.08 and
335-14-6-.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, name, and address.]
The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert "sudden" or
"nonsudden" or "both sudden and nonsudden"] accidental occurrences is being
demonstrated through the financial test specified in 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 "nonsudden" 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.]
[If you are using the financial test to demonstrate coverage
of both liability and closure and post-closure care, fill in the following five
paragraphs regarding facilities and associated closure and post-closure 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, name, address, and current closure, and/or post-closure
cost estimates. Identify each cost estimate as to whether it is for closure or
post-closure care.]
1. The firm
identified above owns or operates the following facilities for which financial
assurance for closure or post-closure care or liability coverage 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 estimate covered by the test are
shown for each facility:_____________________________________.
2. The firm identified above guarantees,
through the guarantee specified in ADEM Admin. Code R. 335-14-5-.08 and
335-14-6-.08,
the closure and post-closure care or liability coverage 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:_____________________________________.
3. In States outside of Alabama, where the
U.S. EPA or some designated authority is administering the financial
requirements, this firm 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 or post-closure cost estimates covered by such a test are
shown for each facility: ____________________________________.
4. The firm identified above owns or operates
the following hazardous waste management facilities for which financial
assurance for closure or, if a disposal facility, post-closure care, is not
demonstrated to the state through the financial test or any other financial
assurance mechanisms specified in ADEM Admin. Code R. 335-14-5-.08 and
335-14-6-.08
or equivalent or substantially equivalent Federal or State mechanisms. The
current closure, and/or post-closure cost estimates not covered by such
financial assurance are shown for each facility:
5. This firm is the owner or operator or
guarantor of the following UIC facilities for which financial assurance for
plugging and abandonment is required under Part 144 and is assured through a
financial test. The current closure cost estimates as required by
40 CFR
144.62 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 Part A if you are using the financial test to
demonstrate coverage only for the liability requirements.]
Part A. Liability Coverage for Accidental
Occurrences
[Fill in Alternative I if the criteria of
335-14-5-.08(8)(f)1.(i)
335-14-6-.08(8)(f)1.
(i) of the Department Administrative Code are used. Fill in Alternative II if
the criteria of 335-14-5-.08(8) (f)1. (ii) or
335-14-6-.08(8)(f)1.
(ii) of the Department Administrative Code are used.]
(h)
1. A corporate guarantee, as specified in
335-14-5-.08(4) (f) or 335-14-5-.08(6) (f) or
335-14-6-.08(4)
(e) or
335-14-6-.08(6)(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 CLOSURE OR POST-CLOSURE
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
335-14-1-.02
to the Alabama Department of Environmental Management (the
"Department").
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 subparagraphs 335-14-5-.08(4)(f),
335-14-5-.08(6)(f),
335-14-6-.08(4)(e)
and
335-14-6-.08(6)
(e).
2. [Owner or operator] owns or operates the
following hazardous waste management facility(ies) covered by this guarantee:
[List for each facility: EPA Identification Number, name, and address. Indicate
for each whether guarantee is for closure, post-closure care, or
both.]
3. "Closure plans" and
"post-closure plans" as used below refer to the plans maintained as required by
ADEM Admin. Code R. 335-14-5-.08 and
335-14-6-.08
for the closure and post-closure care of facilities as identified
above.
4. For value received from
[owner or operator], guarantor guarantees to the Department that in the event
that [owner or operator] fails to perform [insert "closure," "post-closure" or
"closure and post-closure care"] of the above facility(ies) in accordance with
the closure or post-closure plans and other permit requirements whenever
required to do so, the guarantor shall do so or establish a trust fund as
specified in ADEM Admin. Code R. 335-14-5-.08 or
335-14-6-.08,
as applicable, in the name of the [owner or operator] in the amount of the
current closure or post-closure cost estimates as specified in ADEM Admin. Code
R. 335-14-5-.08 or
335-14-6-.08.
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. 335-14-5-.08 or
335-14-6-.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 guarantor no longer
meets the financial test criteria or that he is disallowed from continuing as a
guarantor of closure or post-closure care, he shall establish alternate
financial assurance as specified in ADEM Admin. Code R. 335-14-5-.08 or
335-14-6-.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 or post-closure plan, amendment or
modification of the permit, the extension or reduction of the time of
performance of closure or post-closure, or any other modification or alteration
of an obligation of the owner or operator pursuant to ADEM Admin. Code 335-14-5
or 335-14-6.
9. Guarantor agrees to
remain bound under this guarantee for so long as [owner or operator] must
comply with the applicable financial assurance requirements of ADEM Admin. Code
R. 335-14-5-.08 and 335-335-14-6-.08 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 closure, and/or post-closure
care coverage complying with ADEM Admin. Code paragraphs 335-14-5-.08 and/or
335-14-6-.08.
[Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its "substantial business relationship" with
its 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-.08 or
335-14-6-.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 of operator].
Guarantor also expressly waives notice of amendments or modifications of the
closure, and/or post-closure plan and of amendments or modifications of the
facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording specified in ADEM Admin. Code subparagraph
335-14-5-.08(12)(h) as such rules 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
335-14-5-.08(8) (g) or
335-14-6-.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 [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 nonsudden] 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. 335-14-5-.08(8)(g) and
335-14-6-.08(8)
(g).
2. [Owner or operator] owns or operates the
following hazardous waste management facility(ies) covered by this guarantee:
[List for each facility: EPA Identification Number, 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 the ADEM Administrative Code third-party liability requirements for
[insert "sudden" or "nonsudden" or "both sudden and nonsudden"] 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 nonsudden] 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 nonsudden] 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 Alabama Department of
Environmental Management ("the Department") and to [owner or operator] that he
intends to provide alternate liability coverage as specified in ADEM Admin.
Code paragraphs 335-14-5-.08(8) and
335-14-6-.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.
7. 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 paragraph 335-14-5-.08(8) or
335-14-6-.08(8),
in the name of [owner or operator], unless [owner or operator] has done
so.
8. Guarantor reserves the right
to modify this agreement to take into account amendment or modification of the
liability requirements set by ADEM Admin. Code paragraphs 335-14-5-.08(8) and
335-14-6-.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.
9. 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 paragraphs
335-14-5-.08(8) and
335-14-6-.08(8)
for the above-listed facility(ies), 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 liability coverage
complying with ADEM Admin. Code paragraphs 335-14-5-.08(8) and/or
335-14-6-.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 nonsudden]
accidental occurrence arising from operating [Principal's] hazardous waste
treatment, storage, or disposal 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 nonsudden 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 335-14-5-.08(12)(h)2. as such Rules 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:
|
(i) A hazardous waste facility liability
endorsement as required in 335-14-5-.08(8) or
335-14-6-.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 WASTE 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 paragraph 335-14-5-.08(8) or
335-14-6-.08(8).
The coverage applies at [list EPA Identification Number, name, and address for
each facility] for [insert "sudden accidental occurrences," "nonsudden
accidental occurrences," or "sudden and nonsudden 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 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 subparagraph 335-14-5-.08(8)(f) or
335-14-6-.08(8)(f)
.
(c) Whenever requested by the Alabama
Department of Environmental Management (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 hazardous waste management facility, will be effective only
upon written notice and only after the expiration of sixty (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 subparagraph
335-14-5-.08(12)(i) as such rule 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 the State of Alabama.
[Signature of Authorized Representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of
Insurer]
[Address of Representative]
(j) A certificate of
liability insurance as required in 335-14-5-.08(8) or
335-14-6-.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 WASTE 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 paragraph 335-14-5-.08(8) or
335-14-6-.08(8).
The coverage applies at [
list EPA Identification Number, name, and
address for each facility] for [insert "sudden accidental occurrences,"
"nonsudden accidental occurrences," or "sudden and nonsudden 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 subparagraph
335-14-5-.08(8) (f) or
335-14-6-.08(8)
(f).
(c) Whenever requested by the Alabama
Department of Environmental Management ("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 sixty (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 subparagraph
335-14-5-.08(12)(j) as such rule 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 the State of Alabama.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of
Insurer]
[Address of Representative]
(k) A letter of credit,
as specified in 335-14-5-.08(8)(h), or
335-14-6-.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
Department
Alabama Department of Environmental Management
Dear Sir or Madam: We hereby establish our Irrevocable
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's or operator's name and address] for
third-party liability awards or settlements up to [in words] U.S. dollars
$_____________ per occurrences 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 amounts of [in words] U.S.
dollars $___________, for nonsudden accidental occurrences available upon
presentation of a sight draft, bearing reference to this letter of credit No.
_________, and (1) a signed certificate reading as follows:
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 operations of [grantor's] hazardous waste
treatment, storage, or disposal 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 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 principal] 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 principal] 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.
[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
nonsudden accidental occurrences arising from 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 Department, 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 335-14-5-.08(12) (k) as such Rules 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"].
(l) A surety bond, as specified in
335-14-5-.08(8) (i) or
335-14-6-.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, name, and address for each
facility guaranteed by this bond:
|
Sudden
accidental
occurrences
|
Nonsudden
accidental
occurrences
|
|
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 Wastes Management and Minimization Act of 1978, as
amended.
(2) Rules of the Alabama
Department of Environmental Management Administrative Code, Division 335-14,
particularly Rules 335-14-5-.08(8) and
335-14-6-.08(8),
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 "nonsudden"] 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 nonsudden]
accidental occurrence arising from operating [Principal's] hazardous waste
treatment, storage, or disposal 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 nonsudden 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 Department.
(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 335-14-5-.08(12)(1), as such Rules 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:
$___________________________
(m)
1. A
trust agreement, as specified in 335-14-5-.08(12)(j) or
335-14-6-.08(12)(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 Rules applicable to the Grantor,
requiring that an owner or operator of a hazardous waste management facility or
group of facilities must demonstrate financial responsibility for bodily injury
and property damage to third parties caused by sudden accidental and/or
nonsudden 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.
(c)
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, 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 nonsudden] 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 nonsudden
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 nonsudden]
accidental occurrence arising from operating [Grantor's] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of $[
].
[Signatures]
Grantor
[Signature(s)]
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 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:
(a) 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;
(b) 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
(c) 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 trust
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company Act of 1940, 15 U.S.C.
81a -l 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, 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 335-14-5-.08(12)(m) as such Rules 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 335-14-5-.08(8) (j) Rule or
335-14-6-.08(8)(j).
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]
(n)
1. A
standby trust agreement as specified in 335-14-5-.08(8) (h) or
335-14-6-.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 of a hazardous waste management
facility or group of facilities must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden accidental
and/or nonsudden 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, 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 nonsudden] 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 $6 million]
annual aggregate for nonsudden 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] hazardous waste
treatment, storage, or disposal 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 335-14-5-.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:
(a) 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;
(b)
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
(c) 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 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
institutions 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 of the Alabama Department of
Environmental Management 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
order, 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 Director 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, 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 subparagraph 335-14-5-.08(12)(n) 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
standby trust fund as specified in 335-14-5-.08(8) (h) or
335-14-6-.08(8)(h).
State requirements may differ on the proper content of this acknowledgment.
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]
