(a)
(1) A trust agreement for a trust fund, as
specified in Subsection
R315-261-143(a)
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses 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 Utah Waste Management and Radiation Control
Board of the State of Utah, (the "BOARD") has established certain regulations
applicable to the Grantor, requiring that an owner or operator of a facility
regulated under Rules R315-264, or 265, or satisfying the conditions of the
exclusion under Subsection
R315-261-4(a)(24)
shall provide assurance that funds shall be available if needed for care of the
facility under Sections
R315-264-110
through 120 or
40 CFR
265.110 through 121, which are adopted by
reference; as applicable,
Whereas, the Grantor has elected to establish a trust to
provide all or part of such financial assurance for the facilities identified
herein,
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee,
Now, Therefore, the Grantor and the Trustee agree as follows:
Section 1. Definitions. As used in
this Agreement:
(a) The term "Grantor" means
the owner or operator who enters into this Agreement and any successors or
assigns of the Grantor.
(b) The
term "Trustee" means the Trustee who enters into this Agreement and any
successor Trustee.
(c) The term
"BOARD", "Waste Management and Radiation Control Board" created pursuant to
Utah Code Annotated
19-1-106.
(d) The term "DIRECTOR" means the Director,
Division of Waste Management and Radiation Control his successors, designees,
and any subsequent entity of the State of Utah upon whom the duties of
regulation and enforcement of regulations governing hazardous waste.
Section 2.
Identification of Facilities and Cost Estimates. This Agreement pertains to the
facilities and cost estimates identified on attached Schedule A (on Schedule A,
for each facility list the EPA Identification Number, if available; name;
address; and the current cost estimates, or portions thereof; for which
financial assurance is demonstrated by this Agreement).
Section 3. Establishment of Fund. The Grantor
and the Trustee hereby establish a trust fund, the "Fund," for the benefit of
the
Director in the event that the hazardous secondary
materials of the grantor
no longer meet the conditions of the exclusion under Subsection
R315-261-4(a)(24).
The Grantor and the Trustee intend that no third party have access to the Fund
except as herein provided. The Fund is established initially as consisting of
the property, which is acceptable to the Trustee, described in Schedule B
attached hereto. Such property and any other property subsequently transferred
to the Trustee is referred to as the Fund, together with all earnings and
profits thereon, less any payments or distributions made by the Trustee
pursuant to this Agreement. The Fund shall be held by the Trustee, IN TRUST, as
hereinafter provided. The Trustee shall not be responsible nor shall it
undertake any responsibility for the amount or adequacy of, nor any duty to
collect from the Grantor, any payments necessary to discharge any liabilities
of the Grantor established by
Director.
Section
4. Payments from the Fund. The Trustee shall make payments from
the Fund as the
Director shall direct, in writing, to provide for the payment
of the costs of the performance of activities required under Sections
R315-264-110
through 120 or
40 CFR
265.110 through 121, which are adopted by
reference, for the facilities covered by this Agreement. The Trustee shall
reimburse the Grantor or other persons as specified by the
Director from the
Fund for expenditures for such activities in such amounts as the beneficiary
shall direct in writing. In addition, the Trustee shall refund to the Grantor
such amounts as the
Director 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 depositary even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depositary with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuation. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the Director 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 Director 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 Diector, 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 Director to the Trustee shall be
in writing, signed by the Director, 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 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 Director, except as provided for herein.
Section 15. Amendment of Agreement. This
Agreement may be amended by an instrument in writing executed by the Grantor,
the Trustee, and the Director, or by the Trustee and the Director if the
Grantor ceases to exist.
Section
16. Irrevocability and Termination. Subject to the right of the
parties to amend this Agreement as provided in Section 16, this Trust shall be
irrevocable and shall continue until terminated at the written agreement of the
Grantor, the Trustee, and the Director, or by the Trustee and the Direcotr, if
the Grantor ceases to exist. Upon termination of the Trust, all remaining trust
property, less final trust administration expenses, shall be delivered to the
Grantor.
Section 17. Immunity and
Indemnification. The Trustee shall not incur personal liability of any nature
in connection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor
or the Director issued in accordance with this Agreement. The Trustee shall be
indemnified and saved harmless by the Grantor or from the Trust Fund, or both,
from and against any personal liability to which the Trustee may be subjected
by reason of any act or conduct in its official capacity, including all
expenses reasonably incurred in its defense in the event the Grantor fails to
provide such defense.
Section 18.
Choice of Law. This Agreement shall be administered, construed, and enforced
according to the laws of the State of (insert name of State).
Section 19. Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each Section of this
Agreement shall not affect the interpretation or the legal efficacy of this
Agreement.
In Witness Whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written:
The parties below certify that the wording of this Agreement is identical to
the wording specified in Subsection R315-261-151(a)(1) as such regulations were
constituted on the date first above written.
(Signature of Grantor)
(Title)
Attest:
(Title)
(Seal)
(Signature of Trustee)
Attest:
(Title)
(Seal)
(2) The following is an example of the
certification of acknowledgment which shall accompany the trust agreement for a
trust fund as specified in Subsection
R315-261-143(a).
State of Utah 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)
(b) A surety bond guaranteeing payment into a
trust fund, as specified in Subsection
R315-261-143(b),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted:
Financial Guarantee Bond
Date bond executed:
Effective date:
Principal: (legal name and business address of owner or
operator)
Type of Organization: (insert "individual," "joint venture,"
"partnership," or "corporation")
State of incorporation:
Surety(ies): (name(s) and business address(es))
EPA and State Identification Numbers, name, address and
amount(s) for each facility guaranteed by this bond:
Total penal sum of bond: $
Surety's bond number:
Know All Persons By These Presents, That we, the Principal
and Surety(ies) are firmly bound to the Director of the Division of Waste
management and Radiation Control of the State of Utah (hereinafter called the
Director) in the event that the hazardous secondary materials at the
reclamation or intermediate facility listed below no longer meet the conditions
of the exclusion under Subsection
R315-261-4(a)(24),
in the above penal sum for the payment of which we bind ourselves, our heirs,
executors, administrators, successors, and assigns jointly and severally;
provided that, where the Surety(ies) are corporations acting as co-sureties,
we, the Sureties, bind ourselves in such sum "jointly and severally" only for
the purpose of allowing a joint action or actions against any or all of us, and
for all other purposes each Surety binds itself, jointly and severally with the
Principal, for the payment of such sum only as is set forth opposite the name
of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the Utah Solid and
Hazardous Waste Act as amended, to have a permit or interim status in order to
own or operate each facility identified above, or to meet conditions under
Subsection
R315-261-4(a)(24),
and
Whereas said Principal is required to provide financial
assurance as a condition of permit or interim status or as a condition of an
exclusion under Subsection
R315-261-4(a)(24)
and
Whereas said Principal shall establish a standby trust fund
as is required when a surety bond is used to provide such financial assurance;
Now, Therefore, the conditions of the obligation are such
that if the Principal shall faithfully, before the beginning of final closure
of each facility identified above, fund the standby trust fund in the amount(s)
identified above for the facility,
Or, if the Principal shall satisfy all the conditions
established for exclusion of hazardous secondary materials from coverage as
solid waste under Subsection
R315-261-4(a)(24),
Or, if the Principal shall fund the standby trust fund in
such amount(s) within 15 days after a final order to begin closure is issued by
the Director or a U.S. district court or other court of competent jurisdiction,
Or, if the Principal shall provide alternate financial
assurance, as specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151, as applicable, and obtain the Director's written approval of such
assurance, within 90 days after the date notice of cancellation is received by
both the Principal and the Director 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 Director 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
Director.
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 Director, 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
Director, 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 Director.
(The following paragraph is an optional rider that may be
included but is not required.)
Principal and Surety(ies) hereby agree to adjust the penal
sum of the bond yearly so that it guarantees a new amount, provided that the
penal sum does not increase by more than 20 percent in any one year, and no
decrease in the penal sum takes place without the written permission of the
Director.
In Witness Whereof, the Principal and Surety(ies) have
executed this Financial Guarantee Bond and have affixed their seals on the date
set forth above.
The persons whose signatures appear below hereby certify that
they are authorized to execute this surety bond on behalf of the Principal and
Surety(ies) and that the wording of this surety bond is identical to the
wording specified in Subsection R315-261-151(b) as such regulations were
constituted on the date this bond was executed.
Principal
(Signature(s))
(Name(s))
(Title(s))
(Corporate seal)Corporate Surety(ies)
(Name and address)
State of incorporation:Liability limit:
$(Signature(s))
(Name(s) and title(s))
(Corporate seal)
(For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.)
Bond premium: $
(c) A letter of credit, as specified in
Subsection
R315-261-143(c),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted:
Irrevocable Standby Letter of Credit
(Director name), Director,
Division of Waste Management and Radiation Control
195 North 1950 West
P. O Box 144880
Salt Lake City, Utah 84114-4880
Dear Director: We hereby establish our Irrevocable Standby
Letter of Credit No.____ in your favor, in the event that the hazardous
secondary materials at the covered reclamation or intermediary facility(ies) no
longer meet the conditions of the exclusion under Subsection
R315-261-4(a)(24),
at the request and for the account of (owner's or operator's name and address)
up to the aggregate amount of (in words) U.S. dollars $____, available upon
presentation of
(1) your sight draft,
bearing reference to this letter of credit No.__, and
(2) your signed statement reading as follows:
"I certify that the amount of the draft is payable pursuant to regulations
issued under authority of the Utah Solid and
Hazardous Waste Act as amended."
This letter of credit is effective as of (date) and shall
expire on (date at least 1 year later), but such expiration date shall be
automatically extended for a period of (at least 1 year) on (date) and on each
successive expiration date, unless, at least 120 days before the current
expiration date, we notify both you, the Director, 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 Subsection R315-261-151(c) as such
regulations were constituted on the date shown immediately below.
(Signature(s) and title(s) of official(s) of issuing
institution) (Date)
This credit is subject to (insert "the most recent edition of
the Uniform Customs and Practice for Documentary Credits, published and
copyrighted by the International Chamber of Commerce," or "the Uniform
Commercial Code").
(d) A certificate of insurance, as specified
in Subsection
R315-261-143(e),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted:
Certificate of Insurance
Name and Address of Insurer (herein called the "Insurer"):
Name and Address of Insured (herein called the "Insured"):
Facilities Covered: (List for each facility: The EPA and
State Identification Numbers (if any issued), name, address, and the amount of
insurance for all facilities covered, which shall total the face amount shown
below.)
Face Amount:
Policy Number:
Effective Date:
The Insurer hereby certifies that it has issued to the
Insured the policy of insurance identified above to provide financial assurance
so that in accordance with applicable regulations all hazardous secondary
materials can be removed from the facility or any unit at the facility and the
facility or any unit at the facility can be decontaminated at the facilities
identified above. The Insurer further warrants that such policy conforms in all
respects with the requirements of Subsection
R315-261-143(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 Director of the Division of Waste
Management and Radiation Control, the Insurer agrees to furnish to the Director
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 Subsection R315-261-151(d) such
regulations were constituted on the date shown immediately below.
(Authorized signature for Insurer)
(Name of person signing)
(Title of person signing)
Signature of witness or notary:(Date)
(e) A letter from the chief financial
officer, as specified in Subsection
R315-261-143(e),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted:
Letter From Chief Financial Officer
Director
Division of Waste Management and Radiation Control
195 North 1950 West
P. O. Box 144880
Salt Lake City, UT 84114-4880
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 Sections
R315-261-140
through 143 and
R315-261-147
through 151.
(Fill out the following nine paragraphs regarding facilities
and associated cost estimates. If your firm has no facilities that belong in a
particular paragraph, write "None" in the space indicated. For each facility,
include its EPA and State Identification Numbers (if any issued), name,
address, and current cost estimates.)
1. This firm is the owner or operator of the
following facilities for which financial assurance is demonstrated through the
financial
test specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151. The current cost estimates covered by the
test are shown for each
facility: ____.
2. This firm
guarantees, through the guarantee specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151, the following facilities owned or operated by the guaranteed
party. The current cost estimates so guaranteed are shown for each
facility:
____. The firm identified above is (insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee____, or
(3) engaged in the following substantial
business relationship with the owner or operator ____, and receiving the
following value in consideration of this guarantee____). (Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter).
3. In all other states this firm, as owner or
operator or guarantor, is demonstrating financial assurance for the following
facilities through the use of a
test equivalent or substantially equivalent to
the financial
test specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151. The current cost estimates covered by such a
test are shown for
each
facility:____.
4. This firm is
the owner or operator of the following hazardous secondary
materials management
facilities for which financial assurance is not demonstrated either to EPA or a
State through the financial
test or any other financial assurance mechanism
specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151 or equivalent or substantially equivalent State mechanisms. The
current cost estimates not covered by such financial assurance are shown for
each
facility:____.
5. This firm is
the owner or operator of the following UIC facilities for which financial
assurance for plugging and abandonment is required under 40 CFR
144. The
current closure cost estimates as required by
40 CFR
144.62 are shown for each
facility:____.
6. This firm is the
owner or operator of the following facilities for which financial assurance for
closure or post-closure care is demonstrated through the financial
test
specified in Sections
R315-264-140
through 151 or
40 CFR
265.140 through 150, which are adopted by
reference. The current closure and/or post-closure cost estimates covered by
the
test are shown for each
facility: ____ .
7. This firm guarantees, through the
guarantee specified in Sections
R315-264-140
through 151 or
40 CFR
265.140 through 150, which are adopted by
reference; the closure or post-closure care of the following facilities owned
or operated by the guaranteed party. The current cost estimates for the closure
or post-closure care so guaranteed are shown for each
facility: ____. The firm
identified above is (insert one or more:
(1)
The direct or higher-tier parent corporation of the owner or
operator;
(2) owned by the same
parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee ___;
or
(3) engaged in the following
substantial business relationship with the owner or operator __, and receiving
the following value in consideration of this guarantee __). (Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter).
8. In other jurisdictions and states where
the
Director is not authorized to administer the financial requirements of
R315-264-140
through 151 or
40 CFR
265.140 through 150, which are adopted by
reference, this firm, as owner or operator or guarantor, is demonstrating
financial assurance for the closure or post-closure care of the following
facilities through the use of a
test equivalent or substantially equivalent to
the financial
test specified in Sections
R315-264-140
through 151 or
40 CFR
265.140 through 150, which are adopted by
reference. The current closure and/or post-closure cost estimates covered by
such a
test are shown for each
facility: __.
9. This firm is the owner or operator of the
following
hazardous waste management facilities for which financial assurance
for closure or, if a disposal
facility, post-closure care, is not demonstrated
either to EPA or a State through the financial
test or any other financial
assurance mechanism specified in Sections
R315-264-140
through 151 or
40 CFR
265.140 through 150, which are adopted by
reference, or equivalent or substantially equivalent State mechanisms. The
current closure and/or post-closure cost estimates not covered by such
financial assurance are shown for each
facility: __.
This firm (insert "is required" or "is not required") to file
a Form 10K with the Securities and Exchange Commission (SEC) for the latest
fiscal year.
The fiscal year of this firm ends on (month, day). The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended (date).
(Fill in Alternative I if the criteria of Subsection
R315-261-143(e)(1)(i)
are used. Fill in Alternative II if the criteria of Subsection
R315-261-143(e)(1)(ii)
are used.)
Alternative I
1.
Sum of current cost estimates (total of all cost estimates shown in the nine
paragraphs above) $__
* 2. Total
liabilities (if any portion of the cost estimates is included in total
liabilities, you may deduct the amount of that portion from this line and add
that amount to lines 3 and 4) $__
*
3. Tangible net worth $____
*
4. Net worth $____-
*
5. Current assets $____
*
6. Current liabilities $____
7. Net working capital (line 5 minus line 6)
$____
* 8. The sum of net income
plus depreciation, depletion, and amortization $____-
*
9. Total assets in U.S. (required only if less than
90% of firm's assets are located in the U.S.) $____-
10. Is line 3 at least >0 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 eight
paragraphs above) $____-
2. Current
bond rating of most recent issuance of this firm and name of rating service
____-
3. Date of issuance of bond
____-
4. Date of maturity of bond
____-
* 5. Tangible net worth (if
any portion of the cost estimates is included in "total liabilities" on your
firm's financial statements, you may add the amount of that portion to this
line) $____-
* 6. Total assets in
U.S. (required only if less than 90% of firm's assets are located in the U.S.)
$____-
7. Is line 5 at least >0
million? (Yes/No) ____
8. Is line 5
at least 6 times line 1? (Yes/No) ____
*
9. Are at least 90% of 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 Subsection R315-261-151(e) as such regulations were
constituted on the date shown immediately below.
(Signature) (Name) (Title) (Date)
(f) A letter from the chief financial
officer, as specified in Subsection
R315-261-147(f),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted.
Letter From Chief Financial Officer
Director
Division of Waste Management and Radiation Control
P. O. 144880
Salt Lake City, Utah 84114-4880
I am the chief financial officer of (firm's name and
address). This letter is in support of the use of the financial test to
demonstrate financial responsibility for liability coverage under Section
R315-261-147
(insert "and costs assured Subsection
R315-261-143(e)
" if applicable) as specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151.
(Fill out the following paragraphs regarding facilities and
liability coverage. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include its
EPA Identification Number (if any issued), name, and address).
The firm identified above is the owner or operator of the
following facilities for which liability coverage for (insert "sudden" or
"nonsudden" or "both sudden and nonsudden") accidental occurrences is being
demonstrated through the financial test specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151:____
The firm identified above guarantees, through the guarantee
specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151, 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.)
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 Sections
R315-264-140
through 151 and
40 CFR
265.140 through 150, which are adopted by
reference,:____
The firm identified above guarantees, through the guarantee
specified in Sections
R315-264-140
through 151 and
40 CFR
265.140 through 150, which are adopted by
reference; 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 costs assured under Subsection
R315-261-143(e)
or closure or post-closure care costs under Sections
R315-264-143;
R315-264-145;
40 CFR
265.143 or 145, which are adopted by
reference; fill in the following nine paragraphs regarding facilities and
associated cost estimates. If there are no facilities that belong in a
particular paragraph, write "None" in the space indicated. For each facility,
include its EPA and State identification number (if any issued), name, address,
and current cost estimates.)
1. This
firm is the owner or operator of the following facilities for which financial
assurance is demonstrated through the financial
test specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151. The current cost estimates covered by the
test are shown for each
facility:____.
2. This firm
guarantees, through the guarantee specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151, the following facilities owned or operated by the guaranteed
party. The current cost estimates so guaranteed are shown for each
facility:____. The firm identified above is (insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee____, or
(3) engaged in the following substantial
business relationship with the owner or operator ____, and receiving the
following value in consideration of this guarantee____). (Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter).
3. In all other states this firm, as owner or
operator or guarantor, is demonstrating financial assurance for the following
facilities through the use of a
test equivalent or substantially equivalent to
the financial
test specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151. The current cost estimates covered by such a
test are shown for
each
facility:____.
4. This firm is
the owner or operator of the following hazardous secondary
materials management
facilities for which financial assurance is not demonstrated either to EPA or a
State through the financial
test or any other financial assurance mechanism
specified in Sections
R315-261-140
through 143 and
R315-261-147
through 151 or equivalent or substantially equivalent State mechanisms. The
current cost estimates not covered by such financial assurance are shown for
each
facility:____.
5. This firm is
the owner or operator of the following UIC facilities for which financial
assurance for plugging and abandonment is required under 40 CFR
144. The
current closure cost estimates as required by
40 CFR
144.62 are shown for each
facility:____.
6. This firm is the
owner or operator of the following facilities for which financial assurance for
closure or post-closure care is demonstrated through the financial
test
specified in Sections
R315-264-140
through 151 and
40 CFR
265.140 through 150, which are adopted by
reference. The current closure and/or post-closure cost estimates covered by
the
test are shown for each
facility: ____.
7. This firm guarantees, through the
guarantee specified in Sections
R315-264-140
through 151 and
40 CFR
265.140 through 150, which are adopted by
reference; the closure or post-closure care of the following facilities owned
or operated by the guaranteed party. The current cost estimates for the closure
or post-closure care so guaranteed are shown for each
facility: ____. The firm
identified above is (insert one or more:
(1)
The direct or higher-tier parent corporation of the owner or
operator;
(2) owned by the same
parent corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee ____;
or
(3) engaged in the following
substantial business relationship with the owner or operator ____, and
receiving the following value in consideration of this guarantee ____).
(Attach a written description of the business relationship or
a copy of the contract establishing such relationship to this letter).
8. In other jurisdictions,
and states where the
Director is not authorized to administer the financial
requirements of R315-264.264-140 through 151 or
40 CFR
265.140 through 150, which are adopted by
reference, this firm, as owner or operator or guarantor, is demonstrating
financial assurance for the closure or post-closure care of the following
facilities through the use of a
test equivalent or substantially equivalent to
the financial
test specified in Sections
R315-264-140
through 151 and
40 CFR
265.140 through 150, which are adopted by
reference. The current closure and/or post-closure cost estimates covered by
such a
test are shown for each
facility: ____.
9. This firm is the owner or operator of the
following
hazardous waste management facilities for which financial assurance
for closure or, if a disposal
facility, post-closure care, is not demonstrated
either to EPA or a State through the financial
test or any other financial
assurance mechanism specified in Sections
R315-264-140
through 151 and
40 CFR
265.140 through 150, which are adopted by
reference, or equivalent or substantially equivalent State mechanisms. The
current closure and/or post-closure cost estimates not covered by such
financial assurance are shown for each
facility: ____.
This firm (insert "is required" or "is not required") to file
a Form 10K with the Securities and Exchange Commission (SEC) for the latest
fiscal year.
The fiscal year of this firm ends on (month, day). The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended (date).
Part A. Liability Coverage for Accidental Occurrences
(Fill in Alternative I if the criteria of Subsection
R315-261-147(f)(1)(i)
are used. Fill in Alternative II if the criteria of Subsection
R315-261-147(f)(1)(ii)
are used.)
Alternative I
1.
Amount of annual aggregate liability coverage to be demonstrated $____-.
* 2. Current assets $____-.
* 3. Current liabilities $____-.
4. Net working capital (line 2
minus line 3) $____-.
* 5. Tangible
net worth $____-.
* 6. If less than
90% of assets are located in the U.S., give total U.S. assets $____-.
7. Is line 5 at least >0
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.? (Yes/No) ____. If not, complete line 11.
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 >0
million? (Yes/No) ____-.
8. Is line
5 at least 6 times line 1? ____-.
9. Are at least 90% of assets located in the
U.S.? If not, complete line 10. (Yes/No) __.
Alternative I
1.
Sum of current cost estimates (total of all cost estimates listed above) $____-
2. Amount of annual aggregate
liability coverage to be demonstrated $____-
3. Sum of lines 1 and 2 $____
* 4. Total liabilities (if any portion of
your cost estimates is included in your total liabilities, you may deduct that
portion from this line and add that amount to lines 5 and 6) $____-
* 5. Tangible net worth $____
* 6. Net worth $____-
*
7. Current assets $____
*
8. Current liabilities $____
9. Net working capital (line 7 minus line 8)
$____
* 10. The sum of net income
plus depreciation, depletion, and amortization $____-
*
11. Total assets in U.S. (required only if less than
90% of assets are located in the U.S.) $____
12. Is line 5 at least >0 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.?
(Yes/No) If not, complete line 16.
16. Is line 11 at least 6 times line 3?
(Yes/No)
17. Is line 4 divided by
line 6 less than 2.0? (Yes/No)
18.
Is line 10 divided by line 4 greater than 0.1? (Yes/No)
19. Is line 7 divided by line 8 greater than
1.5? (Yes/No)
Alternative II
1.
Sum of current cost estimates (total of all cost estimates listed above) $____-
2. Amount of annual aggregate
liability coverage to be demonstrated $____-
3. Sum of lines 1 and 2 $____
4. Current bond rating of most recent
issuance and name of rating service ______-
5. Date of issuance of bond ______--
6. Date of maturity of bond
______--
* 7. Tangible net worth
(if any portion of the cost estimates is included in "total liabilities" on
your financial statements you may add that portion to this line) $____-
* 8. Total assets in the U.S.
(required only if less than 90% of assets are located in the U.S.) $____-
9. Is line 7 at least >0
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.?
(Yes/No) If not complete line 12.
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 Subsection R315-261-151(f) as such regulations were
constituted on the date shown immediately below.
(Signature)
(Name)
(Title)
(Date)
(g)
(1) A
corporate guarantee, as specified in Subsection
R315-261-143(e),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted:
Corporate Guarantee for Facility Care
Guarantee made this (date) by (name of guaranteeing entity),
a business corporation organized under the laws of the State of (insert name of
State), herein referred to as guarantor. This guarantee is made on behalf of
the (owner or operator) of (business address), which is (one of the following:
"our subsidiary"; "a subsidiary of (name and address of common parent
corporation), of which guarantor is a subsidiary"; or "an entity with which
guarantor has a substantial business relationship, as defined in Subsections
R315-264-141(h)
and
40
CFR 265.141(h), which is
adopted by reference," to the Director of the Utah Division of Waste Management
and Radiation Control (the Director).
Recitals
1.
Guarantor meets or exceeds the financial
test criteria and agrees to comply
with the reporting requirements for guarantors as specified in Subsection
R315-261-143(e).
2. (Owner or operator) owns or operates the
following facility(ies) covered by this guarantee: (List for each facility: EPA
and State Identification Number (if any issued), name, and address.
3. "Closure plans" as used below refer to the
plans maintained as required by Sections
R315-261-140
through 143 and
R315-261-147
through 151 for the care of facilities as identified above.
4. For value received from (owner or
operator), guarantor guarantees that in the event of a determination by the
Director that the hazardous secondary
materials at the owner or operator's
facility covered by this guarantee do not meet the conditions of the exclusion
under Subsection
R315-261-4(a)(24),
the guarantor shall dispose of any hazardous secondary material as
hazardous
waste, and close the
facility in accordance with closure requirements found in
Sections
R315-264-110
through 120 or 40 CFR
265 -
110 through
121 which are adopted by reference, as
applicable, or establish a trust fund as specified in Subsection
R315-261-143(a)
in the name of the owner or operator in the amount of the current cost
estimate.
5. Guarantor agrees that
if, at the end of any fiscal
year before termination of this guarantee, the
guarantor fails to meet the financial
test criteria, guarantor shall send
within 90 days, by certified mail, notice to the
Director and to (owner or
operator) that he intends to provide alternate financial assurance as specified
in Sections
R315-261-140
through 143 and
R315-261-147
though 151, 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
Director 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
Director 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 financial assurance as specified in of
Sections
R315-264-140
through 151 or 40 CFR
265 -
140 through
150 that are adopted by reference, or
Sections
R315-261-140
through 143 and
R315-261-147
though 151, as applicable, in the name of (owner or operator) unless (owner or
operator) has done so.
8. Guarantor
agrees to remain bound under this guarantee notwithstanding any or all of the
following: amendment or modification of the closure plan, the extension or
reduction of the time of performance, or any other modification or alteration
of an obligation of the owner or operator pursuant to Rules R315-264, 265, or
Sections
R315-261-140
through 143 and
R315-261-147
though 151.
9. Guarantor agrees to
remain bound under this guarantee for as long as (owner or operator) shall
comply with the applicable financial assurance requirements of Sections
R315-264-140
through 151 or 40 CFR
265 -
140 through
150 that are adopted by reference, or
the financial assurance condition of Subsection
R315-261-4(a)(24)(vi)(F)
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 Director and to (owner or operator), provided that this
guarantee may not be terminated unless and until (the owner or operator)
obtains, and the Director approves, alternate coverage complying with Section
R315-261-143.
(Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its "substantial business relationship" with
the owner or operator)
Guarantor may terminate this guarantee 120 days following the
receipt of notification, through certified mail, by the Director and by (the
owner or operator).
11.
Guarantor agrees that if (owner or operator) fails to provide alternate
financial assurance as specified in Sections
R315-264-140
through 151 or 40 CFR
265 -
140 through
150 that are adopted by reference, or
Sections
R315-261-140
through 143 and
R315-261-147
though 151, as applicable, and obtain written approval of such assurance from
the
Director within 90 days after a notice of cancellation by the guarantor is
received by the
Director 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
Director or by (owner or operator).
Guarantor also expressly waives notice of amendments or modifications of the
closure plan and of amendments or modifications of the applicable requirements
of Sections
R315-264-140
through 151 or 40 CFR
265 -
140 through
150 that are adopted by reference, or
Sections
R315-261-140
through 143 and
R315-261-147
though 151.
I hereby certify that the wording of this guarantee is
identical to the wording specified in Subsection R315-261-151(g)(1) as such
regulations were constituted on the date first above written.
Effective date: (Name of guarantor) (Authorized signature for
guarantor) (Name of person signing) (Title of person signing) Signature of
witness or notary:
(2) A guarantee, as specified in Subsection
R315-261-147(g),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses 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 (either Subsection
R315-264-141(h)
or
40
CFR 265.141(h), which is
adopted by reference)", 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 Subsection
R315-261-147(g).
2. (Owner or operator) owns or operates the
following facility(ies) covered by this guarantee: (List for each facility: EPA
and state identification number (if any issued), name, and address; and if
guarantor is incorporated outside the United States list the name and address
of the guarantor's registered agent in each State.) This corporate guarantee
satisfies RCRA third-party liability requirements for (insert "sudden" or
"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 shall 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 shall 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
Director and to (owner or
operator) that he intends to provide alternate liability coverage as specified
in Section
R315-261-147,
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
Director by certified mail of a voluntary or involuntary proceeding under title
11 (Bankruptcy), U.S. Code, naming guarantor as debtor, within 10 days after
commencement of the proceeding. Guarantor agrees that within 30 days after
being notified by the
Director 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
Section
R315-261-147
in the name of (owner or operator), unless (owner or operator) has done
so.
7. Guarantor reserves the right
to modify this agreement to take into account amendment or modification of the
liability requirements set by Section
R315-261-147,
provided that such modification shall become effective only if the
Director
does not disapprove the modification within 30 days of receipt of notification
of the modification.
8. Guarantor
agrees to remain bound under this guarantee for so long as (owner or operator)
shall comply with the applicable requirements of Section
R315-261-147
for the above-listed
facility(ies), except as provided in paragraph 10 of this
agreement.
9. (Insert the following
language if the guarantor is (a) a direct or higher-tier corporate parent, or
(b) a firm whose parent corporation is also the parent corporation of the owner
or operator):
10. Guarantor may
terminate this guarantee by sending notice by certified mail to the
Director
and to (owner or operator), provided that this guarantee may not be terminated
unless and until (the owner or operator) obtains, and the
Director approves,
alternate liability coverage complying with Section
R315-261-147.
(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 Director 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 shall be worded as follows, except that instructions in
parentheses are to be replaced with the relevant information and the
parentheses 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) 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 shall be considered (insert "primary" or "excess")
coverage.
I hereby certify that the wording of the guarantee is
identical to the wording specified in Subsection R315-261-151(g)(2) as such
regulations were constituted on the date shown immediately below.
Effective date:
(Name of guarantor) (Authorized signature for guarantor)
(Name of person signing) (Title of person signing) Signature
of witness or notary:
(h) A
hazardous waste facility liability
endorsement as required by Section
R315-261-147
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses deleted:
Hazardous Secondary Material Reclamation/Intermediate
Facility Liability Endorsement
1.
This endorsement certifies that the policy to which the endorsement is attached
provides liability insurance covering bodily injury and property damage in
connection with the insured's obligation to demonstrate financial
responsibility under Section R35-261-147. The coverage applies at (list EPA and
state Identification Number (if any issued), 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 Insurer. This
provision does not apply with respect to that amount of any deductible for
which coverage is demonstrated as specified in Subsection
R315-261-147(f).
(c) Whenever requested by the
Director of the Utah Division of Waste Management and Radiation Control (the
Director), the Insurer agrees to furnish to the Director a signed duplicate
original of the policy and all endorsements.
(d) Cancellation of this endorsement, whether
by the Insurer, the insured, a parent corporation providing insurance coverage
for its subsidiary, or by a firm having an insurable interest in and obtaining
liability insurance on behalf of the owner or operator of the facility, shall
be effective only upon written notice and only after the expiration of 60 days
after a copy of such written notice is received by the Director.
(e) Any other termination of this endorsement
shall 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
Director.
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 Subsection R315-261-151(h) as such
regulation was constituted on the date first above written, and that the
Insurer is licensed to transact the business of insurance, or eligible to
provide insurance as an excess or surplus lines insurer, in one or more States.
(Signature of Authorized Representative of Insurer)
(Type name)
(Title), Authorized Representative of (name of Insurer)
(Address of Representative)
(i) A certificate of liability
insurance as required in Section
R315-261-147
shall be worded as follows, except that the instructions in parentheses are to
be replaced with the relevant information and the parentheses deleted:
Hazardous Secondary Material Reclamation/Intermediate
Facility Certificate of Liability Insurance
1. (Name of Insurer), (the "Insurer"), of
(address of Insurer) hereby certifies that it has issued liability insurance
covering bodily injury and property damage to (name of insured), (the
"insured"), of (address of insured) in connection with the insured's obligation
to demonstrate financial responsibility under Rules R315-264 and 265, and the
financial assurance condition of Subsection
R315-261-4(a)(24)(vi)(F).
The coverage applies at (list EPA and state Identification Number (if any
issued), 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 Section
R315-261-147.
(c) Whenever requested by the Director of the
Utah Division of Waste Management and Radiation Control (the Director), the
Insurer agrees to furnish to the Director 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, shall be
effective only upon written notice and only after the expiration of 60 days
after a copy of such written notice is received by the Director.
(e) Any other termination of the insurance
shall 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
Director.
I hereby certify that the wording of this instrument is
identical to the wording specified in Subsection R315-261-151(i) as such
regulation was constituted on the date first above written, and that the
Insurer is licensed to transact the business of insurance, or eligible to
provide insurance as an excess or surplus lines insurer, in one or more States.
(Signature of authorized representative of Insurer)
(Type name)
(Title), Authorized Representative of (name of Insurer)
(Address of Representative)
(j) A letter of credit, as
specified in Subsection
R315-261-147(h)
of this chapter, shall be worded as follows, except that instructions in
parentheses are to be replaced with the relevant information and the
parentheses deleted:
Irrevocable Standby Letter of Credit
(Name and Address of Issuing Institution)
(Director name), Director,
Division of Waste Management and Radiation Control
195 North 1950 West
P. O Box 144880
Salt Lake City, Utah 84114-4880
Dear Sir or Madam:
We hereby establish our Irrevocable Standby Letter of Credit
No. ____--- in the favor of ("any and all third-party liability claimants" or
insert name of trustee of the standby trust fund), at the request and for the
account of (owner or operator's name and address) for third-party liability
awards or settlements up to (in words) U.S. dollars $____--- per occurrence and
the annual aggregate amount of (in words) U.S. dollars $_--, for sudden
accidental occurrences and/or for third-party liability awards or settlements
up to the amount of (in words) U.S. dollars $____--- per occurrence, and the
annual aggregate amount of (in words) U.S. dollars $____---, for nonsudden
accidental occurrences available upon presentation of a sight draft bearing
reference to this letter of credit No. ____---, and (insert the following
language if the letter of credit is being used without a standby trust fund:
(1) a signed certificate reading as
follows:
Certificate of Valid Claim
The undersigned, as parties (insert principal) and (insert
name and address of third party claimant(s)), hereby certify that the claim of
bodily injury and/or property damage caused by a (sudden or nonsudden)
accidental occurrence arising from operations of (principal's) facility should
be paid in the amount of $(). We hereby certify that the claim does not apply
to any of the following:
(a) Bodily
injury or property damage for which (insert principal) is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages that (insert principal)
would be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of (insert
principal) under a workers' compensation, disability benefits, or unemployment
compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of (insert principal) arising
from, and in the course of, employment by (insert principal); or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by (insert principal).
This exclusion applies:
(A) Whether (insert principal) may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who shall pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by (insert principal);
(2) Premises
that are sold, given away or abandoned by (insert principal) if the property
damage arises out of any part of those premises;
(3) Property loaned to (insert principal);
(4) Personal property in the care,
custody or control of (insert principal);
(5) That particular part of real property on
which (insert principal) or any contractors or subcontractors working directly
or indirectly on behalf of (insert principal) are performing operations, if the
property damage arises out of these operations.
(Signatures)
Grantor
(Signatures)
Claimant(s)
or (2) a valid final court order establishing a judgment
against the Grantor for bodily injury or property damage caused by sudden or
nonsudden accidental occurrences arising from the operation of the Grantor's
facility or group of facilities.)
This letter of credit is effective as of (date) and shall
expire on (date at least one year later), but such expiration date shall be
automatically extended for a period of (at least one year) on (date and on each
successive expiration date, unless, at least 120 days before the current
expiration date, we notify you, the Director, 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 Subsection R315-261-151(j) as such
regulations were constituted on the date shown immediately below.
(Signature(s)
and title(s) of official(s) of issuing institution)
(Date).
This credit is subject to (insert "the most recent edition of
the Uniform Customs and Practice for Documentary Credits, published and
copyrighted by the International Chamber of Commerce," or "the Uniform
Commercial Code").
(k) A surety bond, as specified in Subsection
R315-261-147(i),
shall be worded as follows: except that instructions in parentheses are to be
replaced with the relevant information and the parentheses 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 and State Identification Number (if any issued), name,
and address for each facility guaranteed by this bond:) __
TABLE
Nonsudden Sudden accidental
accidental occurrences
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 3004 of the Resource Conservation
and Recovery Act of 1976, as amended.
(2) Rules adopted by the Utah
Waste
Management and
Radiation Control
Board, particularly Rules R315-264; 265, that
is adopted by reference; and Sections
R315-261-140
through 143 and
R315-261-147
through 151 (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 shall 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 shall be worded as follows, except that instructions in
parentheses are to be replaced with the relevant information and the
parentheses 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) 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 shall 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 Director 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 Director, 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 Director, as evidenced by the return
receipt.
(8) The Principal may
terminate this bond by sending written notice to the Surety(ies) and to the
Director.
(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 Subsection R315-261-151(k), as such regulations were
constituted on the date this bond was executed.
PRINCIPAL
(Signature(s))
(Name(s))
(Title(s))
(Corporate Seal)
CORPORATE SURETY(IES)
(Name and address)
State of incorporation: Liability Limit: $(Signature(s))
(Name(s) and title(s))
(Corporate seal)
(For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.)
Bond premium: $
(l)
(1) A
trust agreement, as specified in Subsection
R315-261-147(j),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses 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 Waste Management and Radiation Control Board of
the State of Utah, "the Board", has established certain regulations applicable
to the Grantor, requiring that an owner or operator shall 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 "BOARD", "Utah
Waste Management and Radiation Control Board" created pursuant to Utah Code
Annotated
19-1-106.
(b) The term "Director" means the Director,
of the Division of Waste Management and Radiation Control his successors,
designees, and any subsequent entity of the State of Utah upon whom the duties
of regulation and enforcement of regulations governing hazardous
waste.
(c) The term "Grantor" means
the owner or operator who enters into this Agreement and any successors or
assigns of the Grantor.
(d) 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 and State Identification Number (if any issued), name, and address
of the facility(ies) and the amount of liability coverage, or portions thereof,
if more than one instrument affords combined coverage as demonstrated by this
Agreement).
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a trust
fund, hereinafter the "Fund," for the benefit of any and all third parties
injured or damaged by (sudden and/or nonsudden) accidental occurrences arising
from operation of the
facility(ies) covered by this guarantee, in the amounts
of ____-(up to > 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 shall 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 Director.
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 shall be worded as follows, except that instructions in
parentheses are to be replaced with the relevant information and the
parentheses deleted:
Certification of Valid Claim
The undersigned, as parties (insert Grantor) and (insert name
and address of third party claimant(s)), hereby certify that the claim of
bodily injury and/or property damage caused by a (sudden or nonsudden)
accidental occurrence arising from operating (Grantor's) facility or group of
facilities should be paid in the amount of $().
(Signatures)
Grantor
(Signatures)
Claimant(s)
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or 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:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company
Act of 1940, as amended, 15
U.S.C.
80a - 2.(a), shall not be acquired or held unless they are securities or
other obligations of the Federal or a State government;
(ii) The Trustee is authorized to invest the
Fund in time or demand deposits of the Trustee, to the extent insured by an
agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The
Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common commingled, or collective trust fund
created by the Trustee in which the fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company
Act of 1940, 15 U.S.C.
81a-1 et seq., including one which may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section
8. Express Powers of Trustee. Without in any way limiting the
powers and discretions conferred upon the Trustee by the other provisions of
this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depository with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuations. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the Director 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 Director 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 Director, 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 Director to the Trustee shall be
in writing, signed by the Director, or their designees, and the Trustee shall
act and shall be fully protected in acting in accordance with such orders,
requests, and instructions. The Trustee shall have the right to assume, in the
absence of written notice to the contrary, that no event constituting a change
or a termination of the authority of any person to act on behalf of the Grantor
or the 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 Direcotr, 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
Director.
Section 16. Amendment of
Agreement. This Agreement may be amended by an instrument in writing executed
by the Grantor, the Trustee, and the Director, or by the Trustee and the
Director 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
Director, or by the Trustee and the
Director, 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 Director shall 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 Director 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 Utah.
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 Subsection R315-261-151(l) as such regulations were
constituted on the date first above written.
(Signature of Grantor)
(Title)
Attest:
(Title)
(Seal)
(Signature of Trustee)
Attest:
(Title)
(Seal)
(2) The following is an example of the
certification of acknowledgement which shall accompany the trust agreement for
a trust fund as specified in Subsection
R315-261-147(j).
State requirements may differ on the proper
State of
County of
On this (date), before me personally came (owner or operator)
to me known, who, being by me duly sworn, did depose and say that she/he
resides at (address), that she/he is (title) of (corporation), the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that she/he signed her/ his name thereto by like order.
(Signature of Notary Public)
(m)
(1) A
standby trust agreement, as specified in Subsection
R315-261-147(h),
shall be worded as follows, except that instructions in parentheses are to be
replaced with the relevant information and the parentheses 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 Utah Waste Management and Radiation Control Board
(Board), has established certain regulations applicable to the Grantor,
requiring that an owner or operator shall 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 "Board", "Utah
Waste Management and Radiation Control Board" created pursuant to Utah Code
Annotated
19-1-106.
(b) The term "Director" means the Director,
of the Division of Waste Management and Radiation Control his successors,
designees, and any subsequent entity of the State of Utah upon whom the duties
of regulation and enforcement of regulations governing hazardous
waste.
(c) The term Grantor means
the owner or operator who enters into this Agreement and any successors or
assigns of the Grantor.
(d) 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 and State Identification Number (if any issued), name, and address of the
facility(ies) and the amount of liability coverage, or portions thereof, if
more than one instrument affords combined coverage as demonstrated by this
Agreement).
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a standby
trust fund, hereafter the "Fund," for the benefit of any and all third parties
injured or damaged by (sudden and/or nonsudden) accidental occurrences arising
from operation of the
facility(ies) covered by this guarantee, in the amounts
of ____-(up to > 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 shall 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 Director.
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 shall be worded as follows,
except that instructions in parentheses are to be replaced with the relevant
information and the parentheses deleted:
Certification of Valid Claim
The undersigned, as parties (insert Grantor) and (insert name
and address of third party claimant(s)), hereby certify that the claim of
bodily injury and/or property damage caused by a (sudden or nonsudden)
accidental occurrence arising from operating (Grantor's) facility should be
paid in the amount of $()
(Signature)
Grantor
(Signatures)
Claimant(s)
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or nonsudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of the proceeds from
the letter of credit drawn upon by the Trustee in accordance with the
requirements of Subsection R315-261-151(k) and Section 4 of this Agreement.
Section 6. Trustee Management. The
Trustee shall invest and reinvest the principal and income, in accordance with
general investment policies and guidelines which the Grantor may communicate in
writing to the Trustee from time to time, subject, however, to the provisions
of this Section. In investing, reinvesting, exchanging, selling, and managing
the Fund, the Trustee shall discharge his duties with respect to the trust fund
solely in the interest of the beneficiary and with the care, skill, prudence,
and diligence under the circumstances then prevailing which persons of
prudence, acting in a like capacity and familiar with such matters, would use
in the conduct of an enterprise of a like character and with like aims; except
that:
(i) Securities or other obligations of
the Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company
Act of 1940, as amended, 15
U.S.C.
80a -
2(a),
shall not be acquired or held, unless they are securities or other obligations
of the Federal or a State government;
(ii) The Trustee is authorized to invest the
Fund in time or demand deposits of the Trustee, to the extent insured by an
agency of the Federal or a State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The
Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common, commingled, or collective trust fund
created by the Trustee in which the Fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company
Act of 1940,
15 U.S.C.
80a-1 et seq., including one which may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section
8. Express Powers of Trustee. Without in any way limiting the
powers and discretions conferred upon the Trustee by the other provisions of
this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depositary even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depositary with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve Bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements to the Trustee shall be paid from
the Fund.
Section 10. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 11.
Trustee Compensation. The Trustee shall be entitled to reasonable compensation
for its services as agreed upon in writing from time to time with the Grantor.
Section 12. Successor Trustee. The
Trustee may resign or the Grantor may replace the Trustee, but such resignation
or replacement shall not be effective until the Grantor has appointed a
successor trustee and this successor accepts the appointment. The successor
trustee shall have the same powers and duties as those conferred upon the
Trustee hereunder. Upon the successor trustee's acceptance of the appointment,
the Trustee shall assign, transfer, and pay over to the successor trustee the
funds and properties then constituting the Fund. If for any reason the Grantor
cannot or does not act in the event of the resignation of the Trustee, the
Trustee may apply to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. The successor trustee shall specify the
date on which it assumes administration of the trust in a writing sent to the
Grantor, the Director and the present Trustee by certified mail 10 days before
such change becomes effective. Any expenses incurred by the Trustee as a result
of any of the acts contemplated by this Section shall be paid as provided in
Section 9.
Section 13. Instructions
to the Trustee. All orders, requests, certifications of valid claims, and
instructions to the Trustee shall be in writing, signed by such persons as are
designated in the attached Exhibit A or such other designees as the Grantor may
designate by amendments to Exhibit A. The Trustee shall be fully protected in
acting without inquiry in accordance with the Grantor's orders, requests, and
instructions. The Trustee shall have the right to assume, in the absence of
written notice to the contrary, that no event constituting a change or a
termination of the authority of any person to act on behalf of the Grantor or
the 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 Director, 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 Director, or by the Trustee and the Director 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
Director, or by the Trustee and the
Director, 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 Director shall 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 Director 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 Utah.
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 Subsection R315-261-151(m) as such regulations were
constituted on the date first above written.
(Signature of Grantor)
(Title)
Attest:
(Title)
(Seal)
(Signature of Trustee)
Attest:
(Title)
(Seal)
(2) The following is an example of the
certification of acknowledgement which shall accompany the trust agreement for
a standby trust fund as specified in Subsection
R315-261-147(h).
State of
County of
On this (date), before me personally came (owner or operator)
to me known, who, being by me duly sworn, did depose and say that she/he
resides at (address), that she/he is (title) of (corporation), the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation, and that she/he signed her/ his name thereto by like order.
(Signature of Notary Public)