Wednesday
September 16, 1992
Part IV -" -:-..:-^
Environmental
Protection Agency
40 CFR Parts 264 and 265
Standards Applicable to Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities; Financial Responsibility for
Third-Party LtabiNty, Closure, and Post-
Closure; Final Rule
Printed on Recycled Paper '.'.
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42832 Federal Regisi&r"/, Vol: 57, No. 180 / Wednesday, September 16, 1&2 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 264 and 265
IFRL-4106-2]
RIN2050-AC71
Standards Applicable to Owners and
Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities; Financial Responsibility for
Third-Party Liability, Closure, and
Post-Closure
AGENCY: Environmental Protection
Agency.
ACTION: Final rule. '
SUMMARY: The Environmental Protection
Agency (EPA) is amending its financial
assurance requirements under subtitle C
of the Resource Conservation and
Recovery Act (RCRA). On July 1,1991
(56 FR 30201), the Agency proposed
several amendments to the regulations
related to third-party liability coverage,
namely, the claims reporting provision
and the provisions for obtaining a letter
of credit The Agency proposed to
expand the use of the non-parent
corporate guarantee to owners and
operators of hazardous waste facilities
for demonstrating financial
responsibility for closure and post-
closure care. In this action the Agency is
promulgating those changes. :
EFFECTIVE DATE: September 16.1992.,
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline at 1-800-424-3346 pn
Washington, DC, call 260-3000), or Ed :
Coe at (202) 260-6259, Office of Solid
Waste (OS-341), U.S. Environmental
Protection Agency, Washington DC.
20460.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority ' , "
II. Amendments to the September 1,1988 Rule
Regarding Third-Party Liability Coverage
A. Background .
B. Claims Reporting Requirement ,
C, Standby Trust for Owners and
Operators Who Use a Letter of Credit to
Demonstrate Liability Coverage
D. Instruments Available to Owners and
Operators that No Longer Meet the
Requirements of the Financial Test
III. The Expanded Guarantee for
Demonstrating Financial Assurance for
Closure and Post-Closure Care ,
IV. Effective Date
V. State Authorization
A. Applicability of Rules in Authorized
States
B. Effect of Rule on State Authorization ,
VI. Regulatory Analysis
A. Regulatory Impact Analysis
B. Regulatory Flexibility Act
I. Authority
This proposed rule is issued under the
authority of section 3004 of the Resource
Conservation and Recovery Act
(RCRA), as amended, 42 U.S.C. 6924.
H. Amendments to the September 1,
1988 Rule Regarding Third Party j
Liability Coverage
A. Background
On September 1,1988, the Agency
.issued, a final rule that expanded &e
instruments available to owners and '
operators to-demonstrate financial '
responsibility'for third party liability. "
(see 53 FR 33938). Prior to the September
1,1988 rule, the RCRA regulations at 40
CFR 264.147 allowed the use of. a
financial test, a parent corporate:
guarantee, or insurance for third party
liability assurance. In the September 1,
1988 rulemaking, the Agency expanded
the options to include the letter of credit,
surety bond, trust fund, and non-parent,
corporate guarantee. The September 1, :
1988 rulemaking also established in
งง264.147 and 265.145 a claims ,
reporting requirement for third-party , - .
claims. '. ' . . , .
Chemical Waste Management, Jnc.
(CWM) challenged several provisions of;'
the September 1,1988 rulemaking. in. :
particular, several provisions related to
the letter of credit and the claims
reporting requirement. On February 23,
. 1990 the parties entered into a Joint .
Stipulation of Settlement in which the
Agency agreed to: (1) Revise the claims
. reporting requirement of งง,264.147 and
265.147 to clarify the type of claims that
must be reported; (2) amend ง 264.151(k)
to authorize the creation of a standby
. trust fund for owners and operators who
.obtain letters iof credit to demonstrate
liability coverage; and (3) issue a
correction to ง ง 264.147(a)(2) and
285.147(a){2) to insert a reference to the
financial test In accordance with the
February 23 settlement agreement; tie
Agency proposed changes to the claims
reporting requirement of ง ง 264.147 and
265.147 and the iise of a standby-trust .
fund under ง 264.151(k) on July 1/1991.,...
(58 FR 30201)^ The technical correction' ,
to งง 264.147(a)(2) ang 265.147(a){2) was
also.published on that date. Today's
notice promulgates the changes' ,
pertaining to claims reporting and the
standby trustproposed oh July 1,1991.
In addition ;to the changes resulting
: from the settlement agreement, today's t-
notice also promulgates a conforming
change to งง 264.147(f)(6) and
265.147(f)(6) to expand the instruments
available to owners'and operators that
,no longer meet the requirements of the
financial test iforliability coverage. This
change was proposed in the July 1,1991
.notice.
The July i, 1991 notice also proposed
provisions not promulgated today. First,
that.notice proposed modifications to
the financial tests for closure, post-
closure and third-party liability. In
addition, it proposed amendments to the
post-closure deed requirement at
งง;264.119(b)(2), 264.143(i), 265.119(b)(2),
and 265.143(h). EPA is continuing to
evaluate comments received on the
proposed revisions to the financial tests
and has decided not to proceed with
those revisions and the revisions to the
post-closure deed requirements at this
time. EPA believes deferring action on
the amendments promulgated today
until such-time as revisions to the
financial tests and all other issues
arising from the July 1,1991 notice are
resolved is not necessary to protect
human health and the environment and
would unduly burden the regulated-.
community. Because the July 1,1991
notice would have amended the
financial tests and other provisions that
the Agency is continuing to evaluate, the
notice included proposed changes to the
wording of the financial assurance
instruments in ง 264.151 that differ from
"the language in today's rule: Today's
. rule amends the language of the
financial assurance instruments only to
the extent necessary to reflect
amendments to งง 264.143, 264.145, and
.264.147, and งง 265.143, 265.145, 265.147.
B. Claims Reporting Requirement
As is discussed above, the September
1,1988 rule established in งง 264.147
and 265.147 a requirement that owners
and operators report, in writing, to the
Regional Administrator whenever: (1) A
claim for bodily injury or property
damages caused by the operation of a
hazardous waste management facility is
made against the owner, operator, or
instrument providing financial
assurance for liability coverage; and (2)
the amount of financial assurance for
liability coverage is reduced. In its
complaint filed in response to the
.September 1,1988 rulemaking, CWM
.asserted that the claims reporting
requirement, as worded, was overly
broad and thereby unduly burdensome,
CWM argued that it required reporting
of every claim filed against the owner or
operator, no matter how valid.
This reporting requirement was
intended to provide the Agency with
early warning of potential instrument
failure due to pending claims and to
provide the Agency with data
concerning the incidence of third party
claims. EPA certainly did not intend the
interpretation of this provision
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federal JBegister J Vol 57, No. jlflO /-Wednesday. September 16,1982./ .Rules and Jtefulaiums 42833
aujggested by CWM. Instead, in a
memorandum, &om.^yivia K.!LDwranoe
to 1he;RCRA:Branc[hCrfleT8,x>f January
25, 1990, EPA clarified that it expected
reporting of valid clafrns only. Today's
rale revises $ง-264:147]: a)f2),
264.1ซ7(bjf29, 2e5:i47(aMZ), anfl
265.147^23 to clarify ihat interrt and
require reporting t>f third party claims
only when: fl<) B -claim results to
Claim -is entered feelween Ihe owner or
operator and third party -claimant; or {#)
a finaJxjDurtjjrdfir Estaklistimga
judgment is dasued.
in ^eneEal, .oomments;geiierally
favored the neviaed, claims cepoxting
requiremeat. CommenlaKS Mt Ihat ihe
revissd repQEting neguiEfiment would
clarify the, types vof,ckiiH8-ibat -need to
be reported to the Regional .
Administrator. However, -one
cammentor felt ihat "JCertificatioa of
Valid fee lssuer:ef thetetter^of
'credrt, is Tesponsrble for-disfribttting
ftmdste^the-clairnante'wheti.aclaimlfor
damages is ffled agamst"die owner or
dpeiatar. . '
This rule jprgmulgates those -changes
to theletter of cmdil JESframeat by
adding liew | ง 264.147|13, 285:145t(l3 and
requirements and oastroiBeBtt tonguage
of the standby irust.'Hie Agency '..'
believes &at these revisions make 4be
letter asf^credi t 'mope available 1o wvners
and'-operatero wifhout Feducmg'its
integrily. .'"
Commentors generaUy favored the
addition of iSiis financial 'instrument to
those currently. available for use J?y
owners and operators to demonstrate
financial responsibility.
One uesamentor expressed ^concern .
that the letter ef credit with standby
triifrt iinechanism would replace -the
letter of credit imechanismithat is
currenily illewed for use iby owners and
thelEtter-of credit mechanism with =a
standby teust faitm additional"
mecfeanism'tet owners and operators
can -ase arty liafbility coverage, the
Agency lias received many ireguests to
extend its-use to tiosure and jrost-
closure care financial Tesponsibility
requiremeirts.-'Tliis -rale revises
ง? 264.143, 264:145, 265.143 aild;265.145
to allow the-same non-parent guarantee
for closure andpost-closirre'as is
currently 'allowed for third-party . .
liability.
. Injgeneral, commctflors generally
favored expanding the use ofihe .non-
parent guarantee .mechanism to owners
and'operators who wish to ^demonstrate
financial responsibility for closure and
posi^closure care.
pnexommentor felt that .the expanded
noihparent guarantee should be
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42834 Federal Register / VoL57. No. 180 / Wednesday. September 16, 1992 /
classified as more stringent than the
current rule. The Agency disagrees. A
program that allows an additional
instrument for compliance is less
stringent than a program that does not
allow the use of that instrument Thus, ,
though this rule expands the allowable
instruments under the Federal program, .,
the States can choose whether or not to
adopt it. This is explained in more detail
in the Effect of Rule on State .
Authorization section found later in this
notice. - , ...
IV. Effective Date
Today's rule is effective immediately.
Section 3010{b) of R'CRA provides that
regulations respecting permits for the .
treatment, storage, or disposal of
hazardous waste shall take effect six
months after the date of promulgation.
However, section 3010(b)(l) of the
RCRA allows EPA to shorten the time to ,
the effective date if the Agency finds
that the regulated community does not
need six months to come into
compliance with the new regulation.
The provisions of this rule either
reduce the regulatory burden or provide
additional flexibility in complying with
the regulations for owners and
operators. '; .
As a result, the Agency finds that the
regulated community does not need six
months to come Into compliance. Hence,
today's rule is immediately effective
under section 553(d) of the
Administrative Procedure Act.
V. State Authorization. ;
A. Applicability of Rules in Authorized
States ' ;
Under section 3006 of RCRA, EPA
may authorize qualified States to -..
administer and enforce the RCRA.
program within the State (See 40 CFR
part 271 for the standards and
requirements for authorization).
Following authorization, the Agency
retains enforcement authority under .
sections 3008,7003, and 3013 of RCRA,
although authorized States have primary
enforcement responsibility. ,
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA), a
State with final authorization ; ' , .
administered its hazardous was.te
program entirely in lieu of the Federal
program. The Federal requirements no
longer applied in the authorized State, ;
and EPA could not issue permits for any
facilities hi a State where the State was
authorized to permit. When;new, more
stringent Federal requirements were
promulgated or enacted, the State was
obligated to enact equivalent authority
within specified time frames. New"
Federal requirements did not take effect
in an authorized States until the State
adopted the requirements as state law,
In contrast, under section 3006(g) of
RCRA, 42 U.S.C. 6926(g), new
requirements and prohibitions imposed
by HSWA take effect in authorized
States at the same time that they take
effect in npriauthorized States. EPA is
. directed to carry out those requirements
and prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as state law
to retain final authorization, the HSWA
requirements and prohibitions .apply in
authorized States in the interim.
B, Effect of Rule on State Authorization
"Today's rule proposes standards that
are not effective in authorized States
because the requirements are not
imposed pursuant to HSWA. Thus, the
.requirements are applicable only in
those States that do not have final
authorization. In authorized States, the.
requirements will not be applicable until
the State revises its program to adopt
equivalent requirements under state-
law. ' , .
In general. 40 CFR 271.21(e)(2)
requires States that have final
authorization to modify, their programs
to reflect Federal program changes and
to subsequently submit the
modifications to EPA for approval. It
should be noted, however; that
authorized States, are only required to
modify their programs when EPA
promulgates Federal standards that are-
more stringent or broader in scope than
the existing Federal standards. Section
3009 of RCRA allows States to impose
/standards more stringent than those in
.the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal.
program, States are not required to
modify their programs (See 40 CFR
271.1(1)). . '
The provisions of today's rule that
expand the allowable instruments for
demonstrating financial assurance are
less stringent than the current program.
Those provisions are: (1) Revisions to
ง 264.147(h) (4) and (5), งง 265.147(h).(4)
and (5), and 264.151(k), and addition of
new 1264.151(n), which provide for the
use of a stand-by trust with the letter of
credit to demonstrate financial
assurance for liability coverage
requirements; and (2) revisions to
งง 264,147(f)(6) and 265.147(f)(6), which
. expand the mechanisms available to
owners and operators that no longer
meet the requirements of the financial
test for liability coverage; and (3), '.
revisions to งง 264.143(fj(10),
264.145(f)(ll), 265.143(e)(ll), and
265.145(e)(ll), which expand the use of
the non-parent guarantee to owners or
operators demonstrating financial
assurance for closure and post-closure
care. For these Federal program changes
that are less stringent or reduce .the
scope of the Federal program, an
authorized State is not required to
modify its authorized program. If the
State does modify its program, EPA
must approve the modification for the
state requirements to become Subtitle C
RCRA requirements.
The September 1,1988 rule related to
liability coverage established a claims
reporting requirement at ง ง 264.147(a)(7j
and (b](7) and 265.147(a}(7) and (b)(7).
The preamble characterized all
provisions of that rule as less stringent
and, therefore, authorized States were
not required to adopt the new
provisions, including the, claims .
reporting requirement However, upon
further consideration the Agency has
determined that this claims reporting
requirement was, in fact, more stringent
than the Federal program .in effect
before that time because there was no
reporting requirement before that time.
Because the claims reporting
requirement of งง 264.147(a)(7),
264.147(b)(7), 265.147(a)(7), and
265,147(b){7) was more stringent than
the Federal Program in place prior to the
September 1,1988 rule, States should
have been required to modify their
programs to include it in order to ,
maintain an equivalent program. In
accordance with ง 271.21(e)(2), the
deadline for States to modify their
program to reflect changes adopted on
September 1,1988 was July 1,1990.
However, the States were not notified of
this obligation since the rule was
originally classified'Ss less stringent.
Because of the confusion related to the
.stringency characterization of the claims
"reporting requirement and the fact that
the Agency is in the process of clarifying
that requirement, the Agency will, for
. purposes of determining applicable
deadlines under ง 271.21(e)(2), treat the
claims reporting requirement of thie ;
: : September 1,1988 rule as if it were
promulgated and amended today. This
means that the deadline for adopting the
provision is the applicable^deadline'
under ง 271.2l(e)(2) for today's final
rule. States that have not yet adopted
the reporting requirement of the
September 1,1988'rule should not do so
but should adopt the clarified version
promulgated today. In addition, States
' whose programs have been modified to
adopt 'the current claims reporting
requirement but'Wish to adopt the '
clarified reporting requirement should :
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^jdafions 32835
Thejevisions to the claims repsisSng
requirement that^are prpmu^ated today,
howevers are not more stringent than the
x-1_. .. . . .
1995 .meiBBFsndum, a fanlure-to revise
the state program to adopt today's
provisions would nave BO practical
effeat ion swwBersaaa opera tors ;(tfeough
the4lejktember:l, 49B8.$nie. ^Therefore,
.States ihat ia,we already adapted the
current jclaims .Eejaarting leguiremeat ase
not j-^Quked to ad^pt tfeeclaialied
Baeator suggested *hat Ae
on September 1,4988 imposed an
arbitrary and unreasonable burden .an
the rejiJatfidxamununity. .The
commentor :i)fiifiซKBa .thai S?A'.s
determination -flta!fhe proposed
laqguage wasinotjnare stringent ftan
the September i il988laijgu^ge would
,
. States. In fiffi jaoimiieisfoxtB idfiSK, .the
J\geacy saoul? Kacate
I98B rule., :.v.
program jrewiaions. fhat adopted .the
Seplember.% 1BB8 Jangj^e^ .and Jiegmr
"States ,iodhar(ge flieirjiflefi ib ennfrirm
to the newly promiilgatefl. language.
comnifintctf'. -
the state aufhomation .aspects (of
. today's final rule an3;has determined
that it .does not have .the Authority to
'
sts.
.
cannot-mtttire a -State to adopttoday's
language if the State has a claims
repoEtingipKwMaBB 4hat ds feoader f^ar
that . the State interprets as being
broaderj lhaa thai jeguired-by .the
RCRAjpEqgram. ^lowevejc. ERAias
Ibe-effecfive.in miriimMng ie.eoo
ol and need :for..fhejexneasiwe3i%atioa
suggested by Jhe commentor.^'iist oia
January 25, i99Q,S?AjS8ueaja
.memoranaum&om'Sylvia"KvLowranCe
to
Agenpy** treatment ปf Ihe aevfeed diaims
jiotificaiiein -language as jiot ibeipg SBQIE
,
1988 language f see Dodket Number '81-
gtiidenee fm
imjflemeriting-fee -aSBStreportng
requirement ndHrects States andTiegions
to reguh-e.reporting of oji% valid nlaimsi,
that-lsiJ.fhose;rBC(iuir.ea"bjr -toiajyi's aewsed
reporting reguirement Thua, in States,
that have-aaqp-ted lhe-aa88ซep.e)Etiij;g
e
proviatenj.
There are jother factors ihat should
reduce the proTjlem cited ty the
commentor. First, many States have not'
yet aSqpted fee 'language ;of 'the
September!, 1988 nae.;-mese-Stafteswfl
be able .to ctbtalirapjwova! 4?y suTmutfing
todays 5anguage:arii need iufl sulimii .
the September 1;, 1888 language. BeGona,
many States ThSt adopted iJheSejjtenier
1,1988 claims Beporfing^twisjDn
automatically conlbrm'fhe'ir rBgulafions
and statutes,to-the provisions of flie
Federal jn-QgBain; fherefore, iheseStetes
will adtpt today's darffiefl language in
many of ihe States Jhal.adopledi ihe
September I, .1988 language, .obtained
use the T'edexal^egulatojy language, will
want to^dqpt today's ^slaEffiGatifla.'
Therefore, EEA-feeKKwas ihe ^pflated. .
cannot xequiire States Soonofltfy^ieir
programs to comply with less stringent
Federal program changes. However* Sbr
theasasaashBa" * ^_ . ;
States in
commEHtorsuggests.
VI. "Regulatory Analysis
iBeg-afototjr Ekxib&ity Apt
TJ:SiCL 'flat fifcsfijq, .al Sie , ^time .an Agency
publishes 'a pa^ijaed JOT final mle., at
Analysisihal .describes fiie jmnaot 4Eปf
the rule on sma^ entltifis., unless ihe
Administrator ^certifies that .fee rule wffl
nirtliaHB a ซ;jgnificant economic 'impact
on a sttbstartflal number of small
.Tniflajf'B rule expands (he
^rvallatile fox owner or
peTcftbr to -demonstrate financial
. l%erefere, pursuant 1o "5
.,
wffl ซot have a -sSgnificanl Bcontnriic
entities. .
Datedf-'SentBiriber 4,:1992.
T. Henry HablchtU,
ActiqgiAfintiiustzatai..
Listarf&ibjects .
40 CFR Part 264
" Air poJIution contcnl,'
waste. insuraBce,, Packaging jaad
reqinreaents, Security measures, Surety
boitds..
40CFRPart2B5
Air pollution control. Hazardous
waste, Insurance, Packaging and
coirtamerB, Reporfingand Teeordkeepiiig
requicemerits, Security measnres, Surety
bonds, Wซter:BHpj%.
fallows:
PART 264-^STANTMRDS J?OR
HAZARDOUS WASTE rfleATMENT,
STORAG^ANO^MSPOISAL
FACJUTIES ,;.. .-, -,: .., ,,-..'. :.:..,-,
Under Executive Order 1229^ BPA
must-detBEmine svhethef.a TBgii3atton;is
"major"
contiaoeB'toireaa.asfblifows:
AuHjqfltyj
6925,
2.
reviaajg .the intปadacto^y tteปtซof
paragraph ;{ฃ)(1O3 ID jead as foUowfi:
rule. Todajr'saaiJeis.'nolju^or because it
wi!l>notjeBu!,tiaran annual -fiffed con *he
willitiesult inianiacrfiaseiniCQEtsor
prices tD-jnftuatry. 3?here wfEirejae
adverse impact ซmShe abHi!yciF:EI:S.-
3:cnmpj3tein domesticปor
5 AB Agency
an ซecardanoe
tlฎ An owner or operator .may .meet
the.Tegulremerits of'ttiis secfionbjy
bbtainingja written.guararitee.The
guarantormusfbelhe direct or Klgher-
tier-parertt corporation of fhe-owner or
troerfittor, a firm whoseparent
corporafion^is ^Sso'Sie parent
corporBltioh'of flienwaefjor pperator., or
a 5fem'wJtifi-a '^stftjstanftal'bus'ineBS
relafionslnp"-w^fi'the -ownerm
operefhป..13ie-gBar8ntor must meefthe
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42836,Federal Register / Vol. 57, NO., 180 /: Wednesday. .September. 16, 1992 / Rulea. and Reflations,;.
requirements for owners or operators In
paragraphs (fj{l) through (8) of this
section and must comply with the terms
of the guarantee. The wording of the
guarantee must be identical to the
\vording specified in ง 284.151(h). The
certified copy of the guarantee must
accompany the items sent to the
Regional Administrator as specified in
paragraph (f)(3) of this section. One of
these items must be the letter from the
guarantor's chief financial officer. If the
guarantor's parent corporation is also
the parent corporation of the owner or
operator, the letter must describe the
value received hi consideration of the
guarantee. If .the guarantor is a firm with ,
a "substantial business relationship"
with the owner or operator, this letter
must describe this "substantial business
relationship" and the value received.in
consideration of the guarantee. The
terms of the guarantee must provide
that:
* * *
3. Section 284.145 is amended by ,
revising the Introductory text of .
paragraph (fj(ll) to read as follows:
ง 264.145 Financial assurance for post-
. closure care. ' ,
* * * . * # ""''''
(f)* * * , '
(11) An owner or operator may meet
the requirements for this section by
obtaining a written guarantee. The
guarantor must be the direct of higher-
tier parent corporation of the owner or
operator, a firm whose parent
corporation is also the parent
corporation of the owner or operator; or
a firm with a "substantial business
relationship" with the owner or,
operator. The guarantor must meet the-
requirements for owners or operators in
paragraphs (f)(l) through (9) of this
section and must comply with the terms
of the guarantee. The wording of the ,
guarantee must be identical to the
wording specified in ง 264.151(h). A
certified copy of the guarantee must
accompany the items sent to the '
Regional Administrator as specified in.
paragraph (f)(3) of this section. One of
these items must be* the letter from the
guarantor's chief financial officer.-If the
guarantor's parent corporation is also
the parent corporation of the owner or
operator, the letter must describe the
value received'ln consideration of the
guarantee. If the guarantor is a.firm with
a "substantial business relationship"
with the owner or operator, this letter ,
must describe this "substantial business
relationship" and the value received in
consideration of the guarantee. The
terms of the guarantee must provide
that: , I''--' .
* * * '* *
4. Section 264/L47 is amended by
revising paragraphs (a)(7), (b)(7), and
(f)(6) and by adding new paragraphs;
(h)(4) and (h)(5)| to read as follows: ,
ง264.147 Liability requirements.
(a)> * *
(7) An owner ior operator shall notify
the Regional Administrator in writing
within 30 days whenever: -,'"-'
(i) A claim .results in a reduction in the
amount of financial assurance for
liability coverage provided by a
financial instalment authorized in
paragraphs (ajtl) through (a)(6) of this
section; or
(ii) A Certification of Valid Claim for
bodily injury or property damages
caused by a sudden or non-sudden
accidental occurrence arising from the
operation of a hazardous waste
treatment, storage, or disposal facility is
entered between the owner or operator
and third-partyjclaimant for liability
coverage under1paragraphs (a)(l)
through (a)(6) of'this section; or
(iii) A final court order establishing a
judgment for bodily injury or property
damage caused by a sudden or non-
sudden accidental occurrence arising
from the operation of a-hazardous waste
treatment, storage, or disposal facility is
issued against the owner or operator or
an instrument .that is providing financial
assurance for liability coverage under
paragraphs (a)(l) through (a)(6) of this
section.
(b)* * . .
. (7) An owner or operator shall notify
the Regional Administrator in writing
within 30 days whenever.
[i)' A Claim results hi a reduction in
the amount of financial assurance' for -
liability coverajge provided by a
financial instrument authorized in
paragraphs (b)(l) through (b)(6) of this
section; or .
(ii) A Certification of Valid Claim for
. bodily injury or property damages
caused by a sudden or non-sudden
accidental occurrence arising from the
' operation of a hazardous waste ''."
treatment, storage, or disposal facility is
entered betweeii the owner or operator
and third-party claimant for liability
coverage under paragraphs (b)(l)
through (b)(6) of this section; or
(iii) A final cpurt order establishing a
judgment for bodily injury or property
damage caused by a sudden or non- -
sudden accidental occurrence arising
from the operation of a hazardous waste
treatment, storage, or disposal facility is
issued against the owner-or operator or
an instrument that is providing financial
assurance for liability coverage under
paraprapji8;{b){l) through (bpj of th|s
section/,'.;. ;, /./,. '..', .-... .,' ..; ' '..". "':''
* *,"*'''* *
rn'.v *'.""'' ""-'"'"'"
(6) If/the pwner or operator no longer
.meets the requirements of paragraph ,
(f)(l> of this section, he must obtain
insurance, a; letter of credit, a surety.
bond, a trust fund, or a guarantee for the
entire amount of required liability
coverage as specified in this section.
Evidence of liability coverage must be :
submitted to the Regional Administrator
within 90 days, after the end of the fiscal
year for which the year^end financial
data showithat the owner or operator no-
longer meets-the test requirements. ;
* ..*:.*' * : * ' "
(h)
(4) An owner or operator who uses a
letter of credit to satisfy the
requirements of this section may also
establish a.standby trust fund. Under1
the terms of such a letter of credit, all
amounts paid pursuant to a draft by the
trustee of the standby trust'will be
deposited by the issuing institution into
the standby Jrust in. accordance With
instructions from the trustee. The trustee
of the standby trust fund must be an
entity .which has the authority to act as
a trustee and Whose trust operations are
regulated and examined by a Federal ior
State agency. ' ' '.''..'-..''
(5) TJie wording of the standby trust
fund Mist be identical to the wording
specified in ง 2644Sl(rij.. '.'.'.',
* V '*''*'*'
5. Section 284.151 is amended by ..'-.'
revising paragraphs, (f), (g), (h), and fk)
and adding a new paragraph (n) to read
as follows: . .,.,.. . ':';. '
ง264.151 Wording of the instruments.
* * ' * * ' * ''. '
(f) A letter from the chief financial
officer, as specified in ง 264.143(f) or
264.i45(f), or ง 265.143(e) or 265.143(e) of
this chapter, must be Worded as follows,
except mat instructions in brackets are
to be replaced with the relevant' ,. .
information and the brackets deleted:
Letter From Chief Financial Officer :-.''
[Address to Regional Administrator of every
Region in which facilities for which financial"
responsibility is to be demonstrated through
the financial test ;are located].
I am the chief financial officer of [name
and address of firm]. This letter is in support
of this firm's use of the financialvtest to
demonstrate financial assurance for closure
and/or post-closur? costs, as specified in.
subpartHoif4iO-CFR parts 264 and aftS. .
[Fill out the foliovving five paragraphs..
regarding facilities and associated-cost ,
; estimates. If your firm has no facilities that
belong in a particular paragraph, write
-------
; 57j$3& 180 /
S^tenjbeir t^
42837
"None'1 in'the Space indicated: For, "each "'
. facility, incliideit^EPAWentificatiOhL,
Number, name, address, and current closure
and/or post-closure cos,t estimates. Identify
eaphxQst'.estimate.as to'virjiether.it is for
closure .'or ppsi-ph>sure. carie]. .....
1-, This firm,is JUie o\yner prpperatbr of the
.follo'Vvingfacilities,'for: which financial'"-.'
assurance for closure pripo^closure care is
demonstrated through .the'financial test
specified in subpart H of40 CFR'parts 264
and 265. The current/closure and/or post- "
closure cost estimates; covered by {the test are
shown for each facility; ." ' , -..;.
, 2. Thi^iBrm'guarantees,'thrquglj t^e .
guarantee spec'ifleii'ih subpart H of 40,CFR
: parts 264 and 265, the1 closure.or post-closure
care of the' folktwing;facilities owned or '
operated by, the guaranteed party. The ' -
current cost estimates for ;thie'closure .or post-
closure care so guaranteed are shown for <
; 'each facility: ____^_.'.Th'e; Firm identified .
. above is [insert one 'or more: fl) The direct or
higher-tier;par'erticrirpbiation;Qftiie owner or
operator; (2)'owned by the same parent-
corporation as ;the parent corporation of the
owner or operator,' and receiving the
. following valuejn. consideration ofthis
guarantee , .',::;,or (3) engaged in the.. -
following substMJtiai b.usjness relationship.
with the DWrier or'ripBfatnr " ' ', 'strj,ซj
receiving the following valueln consideration
of this guarantee li^-JlLJ: {Attach a written
description of the business' relationship or a
cppy of the. contract establishing such
.relationship to this letter].; ':.:,,;. :
3. In States where! JBPAIs.not administering
the financial requirements.pf'subpart H of 40
CFR part 264 or 265, this firm, as owner or
operator or guararitdr; is demonstrating
financial assurance for the closure or post-
closure care bf the following facilities through :
.the 'use' of a test-equivalent or substantially
. equivalent tP.the.flnancial test specified in
subpart H.of 40 CFR parts 264 and 265,. The
current'closure and/pi; ppsVclosure cost
estimates.cov'e.re'dfby'.such'a'test are shown'
' foreachfan'ility; i '^' ". "; '' ;..- ,..
4. This firm is the owner'or operator of the
following hazardous waste management
facilities for which financial assurance for '
. closure or, if a:disppsal 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
subpart H of 40 CFR parts 264 and 265 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!. . .:-- ". . , .
5. This firm is the owner or operator of the
following UIC facilities for which financial
assurance for plugging and abandonment is
.required undei'p'art 144. .the current closure
cost estimates as required 'by 40 CFR 144.62
are shown for each facility: '__^i_ '
This firm {insert;':'is requireid", or "is not .
required"]itofile:aForm110K,with the
. Securities: and Exchange jCqinmtssjpn JSEG) .
for the, latest fiscal.year; . . , ''..- ^ . .......
The fiscal yeฃr of this,firm ends on {month,
day]. The figures for the following Hems "''.
' marked with" ah aSfensfc a'rie3Mvt^from this'
firm's indepehcldntry.audited,'year-grid..;;%'"'. :
' financial statements for the: latest completed
fiscal year,naedfdate]i-'f1''i''--'':'- ''"-'
[Fillin ArternativeIif the Criteria pf :
paragraph (f)(l)[i) of 5 264.143 or ง 264;145, or
of paragraph (e}(l)(i) of ง 265:143 or$ 265.145
of this chapter are used. Fill in-Alternatiye II
if the criteria of paragraph;(f)(l)[ii)pf
ง 264.143 or.J 264.145, Prof paragraph
{e)(l)(ii) pf ง 265.143 pr ง 265.145 pf this.
chapter are used.} ';. '':; ':'-
Alternative I' ",' .' '. " " '"{ ' ;'<
1. Sum pf current closure and ppsii-closure .
cost estimate [total of all cost estimates
shown in;the five paragraphs abovej
~ . ~ ** J- Otfll uCtOllltlBS |ix~ cui v jfui vivii'-v* me ''
closure or post-closure cost estimates is ';
included in total liabilities, you mayideduct.
the amount of that portion from this jinejarid
sdd that amount to lines 3 and 4]$ ;
*3. Tangible net worth r
; .*4.NetWprth$
*5. Current assets $L__
'6. Current liabilities $L___^^ ,; .,.
7. Net working capital {line 5 mintisline 6] '
*8. The suih of net income plus 1' ' . '
depreciation, depletion, and amortization '
*9. Total assets in y.S' {required pnly if"
less than 9055 bf firm's assets !are Ibcsfed iai '..'
10. Is line 3 at least $10'rhilK6n? ptes/NoJ
11. Is line 3 at least 6 times line 1? ;{Yes/Np}
12. Is line 7 at least 6 times Mae l?ijYes/Noj
*13. Are at least 90% of firm's assets .;
Ipcated in the U.S.? If not, Complete line 14 :
(Yes/No) ' ': ' : , ;
14. Is line 9 at least 6 times'line ]?:(Yes/Nd)
15. Is line 2 ^divided by line 4 less than 2.0?
(Yes/No) , .'' ,.: ; ..-:<:;.
.16. Is line 8 divided by .line 2 greater thsri
0.1? (Yes/No)____ ,. .,-:.-.-.;::;''.
17. Is line 5 divided by line 8. greaW fhan
1.57 (Yes/No) \ '/ "^ ; .'i;ii.^';'!OV
AlternativeII ''- '- - ''V. . '\\.\iy-.
1. Sum of current closure and post-closure .= '
cost estimates [total of all cost estimates , ;
shown in the five paragraphs above]: -.'; .;
2. Current bond rating of most repdnt".
issuance of .this firm and name of rating
service.
3. Date of issuance of hnnrf .
4. Date of maturity nfhnnrt .; .
. ?5. Tangible net worth [if any.portion, of the.
closure and post-closure cost estimates is.
included in "total liabilities" on your; firm's
financial statements, you may add the
amount of that portion to this line] $'' ';. ''
*8. Totalassets.in U.S. (required pjnlyjf :
less than 90% of firm's assets are Ipcated in '
the US.) $__ฃ__ -' ..-.":;;.'
7. Is line 5 at least $10 millibn'? (Yes/No);
8. Is line 5 at least.× lirte:l?:(Yes/Nbj '
^..Are at.least.90% of,finn%.assetij located *
in the U.S.? If npt,.coinplete:line 10{Yes/No} --:
; 10. Is line 6 a| least 6 ames^liri:i?(JYes/Np)
.1 hereby certify that .the Wording 0f this : %
. letter is id^ntfeal to the. wprding specified in
46CFR264:i51(fJ:assiiehregulatipnswer>: '
ionStituted-on; the d^(e shown immediateiy
below. ; - . .
[Signature]1 ; ''.'- .':i '.
'[Name] *?, .' '.. 1___^_
[Title]:',-:' :." ,..'; -
. {Date} ; ^- -
,, (g) A letter from the chief! financial
: officer, as .speeifiejd in ง 264.147{fj or;". '
:ง 26^.147(fj of this chapter* rhust be
wprfed as follows, except fe^t
instructions in brackets are to be.'_".-'..' '..
replaced yvith the relevant information
. and th& brackets deleted.
Letter From .Chief Financial Officer .
Address to Regional Administrator of '
every;Region in which facilities for which' .
financial .responsibility is' tp be demonstre ted
through the financial test are located]., . ;,.;
I'am the chief finandaljpfficeir of [firm's'"' .
nain^-'and address]: lliis letter is in:sup{)Prt
. of the use of the financial test to demonstrate
financial responsibility for liability coverage'
[insert "and closure and/or post-closure
care" if applicable] as specified in subpart H
of 40 CFR parts 264 and 265.. - '' :. :
[Fill out the-fpllowing paragraphs regarding
facilities and liability coverage. If there are1
no facilities that belong in a particular
paragraph, write "None" in Ae space ;
indicated. For each facility, include its EPA
Identification Number, name, and address].' ,
The firm identified above is the owner or
operator of the following facilities for, which
liability coverage for-pnsert "sudden" or ' :
"nonsudden" or "both sudden and ..
nonsudden"] accidental occurrences is being
demonstrated thro'ugh the'financial test;
specified in subpa'rt H of SO QH.parts 264.
anrtgftH: - ; V -; ,.;,', " :". ' \ . ' ^ /
The firm identified above guarantees, :
through' the guarantee specified in' subpart H '
of 40 CFR parts 264 and 2fl5i'liabiUty. ' : -
.cpyerage for [insert"sudden":pr','..'.-.....:,...'. .
.''nonsudden" of "bpth sudden and; ..?,' ;:l!
nonsudden"] accidental occurrences at the ' ,
following facilities ownediar operated by^ the...
following: .-The firnj identified above'
is [insert one or more: (1) The direct 6r
higlier-tier barent corporation pf the owner or
. opera ton '(2) owned by the .same parent; '-'
corporation as-the parent corporation of the
owner or ojperatpr, and receiving .the
following value in consideration of this .
guarantee., ; ;. pr (3) engaged in the
fplldwing substantial business relationship
with the owner pirpperator _, and ..
receiving the'following value in. consideration
of this guarantee] '~:'L.]; {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
dernbnstrate coverage of both liability, and
closure and post-closure car4, ipll in Ihje / '.^
follo.wing five paragraphs regarding facilities:' .
estimates.'If there are no facilities that belong
in a particular paragraph; Tyrife "None'? irf'the;
space indteated^ For each faqilitjf, include, its :
EPA identification number, name, address.
-------
42838 Federal Register / Vol. 57, No. 180 / Wednesday. September 16. 1992 / Rules and
and current closure and/or post-closure cost
estimates. Identify each cost estimate as to
whether It U for closure or post-closure care.}
1. Th* firm identified above owns or
operates the following facilities for which
financial assurance fqr closure or post; ,
closure care or liability coverage is .
demonstrated through the financial test
specified in subpart H of 40 CFR parts 264
and 285, The current closure and/or post-
closure cost estimate covered by the test are
shown for each facility: . ' .
2. The firm identified above guarantees.
through the guarantee specified in subpart H .
of 40 CFR parts 284 and 285, the closure and ,
post-closure care or liability coverage of the
following facilities owned or operated by the
guaranteed party.The current cost estimates
for closure or post-closure care so guaranteed
ore shown for each fac3ity; _ .
3. la States where EPA is not administering
the financial reqedremeat* of subpart H of 40
CFR ports 28* and 205, this firm is
demonstrating financial assurance for the
closers or poet-derate care of the following
facilities, through the vie of a test equivalent
or substantially equivalent to the financial
test ipedfied lawdjpart H or 40 CFR part*
284 and 285. The current closure or post-
dosare cost estimates covered by such a test
are shown for each facility:_ LJ
4. The firm identified above own? or
operates the following hazardous waste
management facilities for which financial
assurance for closure or, if a disposal facility,
post-closure care, is not demonstrated either
.to EPAor a State through the financial test or
any other financial assurance mechanisms
specified in snbpart K of 40 CFR parts 264
and 265 or equivalent or substantially ,
equivalent State mechanisms. The current
closure and/orpost-dosure cost estimates
not covered by such financial assurance are
shown for each facility: _ .
S. This firm is the owner or operator or :
guarantor of the following UIC facilities for
which financial assurance for plugging and
abandonment ii required under part 144 and
Is assured throegh ft financial test. The -
current closure cost estimates as required by
40 CFR 144.62 are shows for each .
facfliry . ,
This firm [insert"** required" or "is not
required"] to file ซ 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 frith an asterisk are derived from this
firm's independently audited, year-end
financial statement* for the latest completed
fiscal year, ended [date].
t
Part A. Liability Coverage for Accidental .
Occurrences
[Fillin Alternative I if the criteria of
paragraph (f)(l)(i) of 5 264.147 or 5 285.147
arc used. Fill in Alternative Q if the criteria of
paragraph {f)W{ii} of f 264.147 orง 265.147
are used.] '
Artomatlvol , . ,
1. Amount of annual aggregate liability
covcrage to- be demonstrated $ <.
2, Current asset* $, .
*3.Current$ ; . , . .
4. Net working capital .(line 2 minus line 3}
$_____ ' ', ..
, *5, Tangible net worth $. .
*6. If less tban'90% of assets are located in
the U.S., give total U.S. assets $ .
. ' 7. Is line 5 at lekst $10 million? (Yes/No)
8. Is line 4 at least 6 times line 1? {Yes/No}
' 9. Is line 5 at least 6 times line 17 (Yes/No)
*10.' Are at least 90% of assets located ia
the U.S.? (Yea/No) If not, complete
lineil. !
11. Is Unseat least & times line 1? [Yes/No)
Alternative D
1. Amount of airnual 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.
t i , .
4. Date of mahirity of bond.
*11. Total assets in U.S. (required only if ..
less than 90% of assets are located in the
U.S.}$
12, Is line 5 at least $10 million? (Yes/No)
13. Is line 5 at least 6 times line 3? (Yes/No)
14. Is line 9 at least. 6 times line 3? (Yes/No)
*15. Are at least 90% of assets located in
the U.S.? (Yes/No};If, not, complete Hne 16.
10. Is line 11 at least 6 times line 3? {Yes/
No)
17. Is line 4 divided by line 6 less than 2.0?
(Yes/NoJ .
18. Is line 10 divided by line 4 greater than
0.1? (Yes/No)
19. Is Hne 7 divided by line 8 greater than
1.5? (Yes7Nb}.
Alternative II
1. Sum of current elos.ure and post-closure
cost estimates (total of all cost estimates
listed above) S. :
2. Amount of annual aggregate liability
coverage to be demonstrated $
3. Sum of fines land 2$ _
4. Current bond rating of most recent'
issuance and name of raring service I
' *5. Tangible net worth $ .
*6, Total assets in.U.8., (required only if
less than 90% of assets .are located in the
U.S.j$_ __.:
7. Is line 5.at least $10 million? fYes/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/NoJ
10. Is line 6 at least 6 times line 1? __
[Fill in partBif you are using, the financial
test to demonstrate assurance of both
liability coverage and closure or post-closure
care.J .. . ' !
PartB, Closure or Post-Closure Care and
Liability Coverage ...'' '.
. [Fill in Alternative I if the criteria of.
paragraphs (fj[l)(i) of I 264.143!or 8 264.143
and (fj{l)fijof 5)264.1147 are used orif the ,
criteria of paragraphs (eKl)(i) of 5 '26K133 or
. ง 265.145'and (fp)(i) of ง '265.147 are used.
FiU In Alternative II if the criteria, of
paragraphs (f){lKซ) of S 264.143 or ง 264.145
and (f)(l)(ii> of ง 264.147 are used or if the
criteria' of paragraphs (ej(l)(ij of ง 265.14? or
ง 265.145 and (f)(l)(ii) of i 265.147 are used.]
Alternative I
1. Sum of current closure and post-closure
cost estimates (total of all cost estimates
listed above); &J :
Z. Amount of annual aggregate liability
coverage to be demonstrated $
3. Sum of lines 1 and 2 $
*4. Total 1 {abilities [if any portion of your
closure or post-clbspre co*t estimates ia
included in your total liabilities, you may
de.doct that portion from this line and. add
that amount to lines 5 and 6} $'
*5. Tangible net worth $_=-
*6. Networth!$ ,- .
.*7. Crarent assets $_^ ' ' '
*8. Current liabilities $ ' ;
9. Net woridng capital pine 7 minus line 8)
$____ , ' , :,'. '
10. The sum of net income plus
depreciation, depletion, and amortization
$r' :'! . ' " -
5. Date of issuance of bond -
6. Date of maturity of bond - :
*7, Tangible net worfli (if any portion of the
closure or poatrdosure cost estimates is
included in. "total liabilities" bn yotir
financial statements you may add that
portion to this line) - $' - . -
"a Total assets in the U.& [required only if
less than 90% of assets are located in the
U.S.)$ _ . . ..
9. Is line 7 at least $10 million? [Yes/No)
10. Is Une'7 at least 6 times line 3? (Yes/No)
*11. Are at least 90% of assets located in
the U.S.? tYes./No) If riot complete line 12.
12. Is line 8 at least 8 times line 3? (.Yes/No)
I hereby certify.that the wording.of. this
letter is identical to the wording specified in
40 CFR 264.151(g) as such regulations were
constituted on the date shown immediately
below. . ;,'..- ;
[Signature} - ' ; - -
[Name] - = -- - ; -
[Date] - - ' - ^~
(hHl) A cqrpor.ate guarantee, as
specified in ง 264.143(f),or ง 264.145(f),
or ง 285.143[e) or | 265.145(e) of this
chapter, must be worded as follows,
except that instructions in brackets are
to be replaced with the relevant
. information and the brackets deleted:
Corporate Guarantee for Closure or Post-
Closure Care
Guarantee made this [date] by [name of
guaranteeing entity], a business corporation
organized under the taws of the State of
, [insert name of Stete], herein" referred to as
guarantor. This guarantee is- made~on behalf
ofthe[ciwnerbrorieratqrjbf [business .
address^ trfrich fa [one of the following: "onf
sobsidiary"; "a subaidtary of [name and
address>ot common. ipaieat'cbrporertittn}, of . ,
which guarantor k * subBidfery"; of^an
entity with which guarantor &ซs!a subsfaiitia!
-------
Federal Register / Vol. 57, No. 180' / Wednesday, September 16. 1992 / Rules and Regulations 4%839 ;
business relationship, as defined in 40 CFR
[either 264.141(h) or 265;141(h}]" to the United
States Environmental Protection Agency
(EPA). ........
Recitals
i. Guarantor meets or exceeds the financial
test criteria and agrees to comply with the
reporting requirements fbrguarantors as
specified in 40 CFR 264.143(f), 264.145(f),
265.143(e), and 265.145(e).
2. [Owner or operator] owns or operates
the following hazardous waste management
facih'ty(ies) covered by this guarantee: [List
for each facility: EPA Identification Number,
'name, and address. Indicate for each whether
guarantee'is for closure; post-closure care, or
both.]
3. "Closure plans" and "po&t-clo'sure plans".
as used below refer to the plans maintained
as required by subpart G of 40 CFR parts* 264 -
and 265 for the closure and post-closure care
of facilities as identified above.
, 4. For. value received from [owner or
operator], guarantor guarantees to EPA that
in the event that [owner or operator] fails to
perform [insert "closure," "post-closure care"
or "closure arid post-closure care"] of the
above facility(ies) in accordance with'the .
closure or post-closure plans and other.
permit or interim status requirements
whenever required to do so, the guarantor .
shall do so or .establish a trust fund as
specified m subpart H of 40 CFR part 264 or
265, as applicable, in the name of [owner or
operator].in the"amount of the,current closure
or post-closure cost estimates as'specified in
subpart H of 40 CFR parts.264 and 265.'"
. 5. Guarantor agrees that iฃ at the end of ..-
any fiscal year before termination of this'
guarantee, the guarantor fails to meet the -
financial test' criteria, guarantor shall s^nd
.. within 90 days, by .certified mail, notice to the
EP^L.Regional Admiriistratprfs) for the ',
Region(S) in which the"facility(ies) is(are)
" located arid to [owner or operator] that he
intends to provide alternate financial
assurance as specified in subpart H of 40 CFR
part 264 or 265, 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. EPA
Regional Administrator 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.1 "
7. Guarantor agrees that within 30 days
after being notified by an EPARegional ' .
. Administrator of a determination that . -
guarantor no longer meets the financial'test
criteria or that he is disallowed from ;'!
continuing as a guarantor of closure or post-
closure care, he shall establish alternate
financial assurance as specified in subpart H
of 40 GFR part 264 or 265. 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 folio wing: amendment or modification of ;.
.: the closure or post-closure plan, amendment
'or modification of the'permit, the extension '.
' pr reduction of the" time of performance of - "
closure or-pcst-closurej'or any other
modification or alteration' of an obligation of
the owner or operator pursuant to 40 CFR'
part 264 or 265.
9. Guarantor agrees to remain bound under
this guarantee for as long as [owner or
operator] must comply with the applicable
financial assurance requirements of subpart
H of 40 CFR parts 264 and 285 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 EPA
Regional Administrator(s) for the Region(s) in
which the facility(ies) is(are) located and to
[owner or operator], provided-thai this
guarantee may not be terminated unless and
until [the owner or operator] obtains, and the
EPA Regional Administrator(s) approve(s),
alternate closure and/or post-closure care
coverage complying with 40 CFR 264.143,
264.145,265.143, and/or 265.145.
[Insert the following language if the guarantor
is a firm qualifying as a guarantor due to its
"substantial business relationship" with its
owner or operator] " "
Guarantor may terminate this guarantee.
120 days following the receipt of notification,
through certified mail, by the EPA Regional:.
Administrators) for the Region(s) in which .
the facility (ies)is(are) located arid by [the
owner or operator]. >.... .. j . ., . .'., .
11. Guarantor agrees that if [pwnerpr;
.operator] fails to provide alternate financial ,
assurance as specified in subpart H of 40 CFR
P"ฃrt 264 pr 285, as applicable, and obtain ?
written apprpya! of such assurance from the '
EPA Regional Administrator(s),witKin 90;" '
days after a" notice of cancellation by the.. '
guarantor is received by an EPA Regional
Administrator 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' SPA or .....
by [owner or operator]. Guarantor also
expressly waives notice of amendments or
modifications of the closure and/or post-
closure plan and of amendments or
modifications of the facility permit(s).
I hereby certify that the wording of this -,'
guarantee is identical to the wording ;
specified in 40 CFR ?64.151(H} as such !. ; ,
regulations were constituted on the daie.firjat..,
above written^ .',.." '...'.. /, , ..... .--.','...; -.. .ป
Effective date: ".'...
[Name of guarantor] .,'.'_...'. ..,.] . \ ";'.'.
[Authorized signature for guarantor] 41.
[Name of person signing] ' , _ ' ' - ","
[Title of person signing].
Signature of witness or notary: - " '-
(2) A guarantee, as specified in 5 Z64.147(g) '
or ง 265.147(g) of this chapter, must be -
worded as follows, except that instructions in
brackets are to be replaced with the relevant'
information and the brackets deleted: :
Guarantee for Liability Coverage . ' . -
Guarantee made this [date] by [name of
guaranteeing entity], a business corporation damages that [msertowner"or operator}
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 pf
the principal place of business], herein .
referred to as guarantor. This guarantee is
made on behalf of [owner or operator] pf
[business'address], which is one of the :
following: "our subsidiary!" "a" subsidiary of,
[name and address of common parent
corporation], or which guarantor is a
subsidiary;" or "an entity with which
guarantor has a substantial business .
relationship, as defined in 40 CFR [either
264.l4l(h)]", to any and all third:parties wha -"
have sustained or may sustain bodily injury -
.or property damage caused by [sudden and/
or nonsudden] accidental occurrences, arising .
from operation of the facilitypes) 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 40 eFR:284.147{g) and 265.147(g).
2. [Owner or operator] owns or operates
the following hazardous waste-management
-facility^ies) covered by this guarantee: [List
for each facilityr EPA identification Dumber; '. .
pame, and address; and if guarantor is . . '. .
ineorporated outside the United Staies ligt' (_ '^
the name and address of the guarantor's ''"
registered agent in each State.) This "", . .
cbiip.prateJuEufaHteie;satisfies RCR,A third^C".
ipayty'liabHityreqiarementi*f^r^iiwert ',..: ':'...L
"sudiden'* ''or '"hbrisudderi*1 br."bo'fli iiidden ': ^
and nonsudden"] acciaehMbccurrencesm "
above-named owner or operator facilities for.., -
coverage in the amount of [insert dollar .
amount] for each occurrence arid [insert ... "';:
dollar amount] annual aggregatet '.. .- '--.;.,
. 3i, For value received from [owner or ..;.",.
.operator}, guarantor guarantees tp any and . .
all third parties who have sustained, or may ; .. ,
sustain; bodily injury or property damage . ,
caused by [sudden and/or nonsudden}
accidental pccurrenceB arising from
operations of the facilities] covered by this
guarantee that in the event that [owner pr -:; '>
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 tsudden 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,'
tlieguarantor will satisfy fluch judgment(s), .
awardfs) 6r>ettlementagteement(8J up to the ';
limits of coverage' ideptinedibowe',.'; >:. !, -f- '
.4. Such obligation does not apply to any .of f
the following: " ' '[.' ~' ...- ,' -; 1-.",
; (a)Bodily injury or property damage for ;"-i,
. w.hiqh- [insert owner or operator] if .obligated k
to pay damages by reason of tte assumption. .>
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4280D Eedpr*iJRegjster / Vol. 57ป No* 18tt / Wednesday, September 16, 1:992 / Rules and Regulations
'would be obligated tp pay IB the absence of
tiat contract or agreement,
P>J Any oHigstfmi of pnsert owner-ซr
operatorj under s wujkciB1 compensation,
s, or tm employment
compensation few w any similar law.
{c> Bodily in jwyte:
(1) Aa- employee of [Insert owner.or
operator} arising frarav and in the course of;
employment by [insert owner or operator}; or
(2J-Th*sp
(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 pf combination of this
guarantee with another mechanism to meet
liability requirements, this guarantee will be
considered [insert "primary" or "excess"]
coverage, -
I hereby certify that the wording of the-
guarantee iป identical to the wording
specified in 40 CFR 264.151{h){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 of notary:
(k) A letter of credit, as specified in
ง 264.147(h) or 265.147(h) ,of this chapter,
must be worded as follows, except that
instructions in brackets are to be
replaced with,the relevant information
and the brackets deleted:
Irrevocable Standby Letter of Credit
Name and Address of Issuing Institution
Regional AdmiriiBtrator(s) -<
Regionfs)
U.S. Environmental Protection Agency '^~
Dear Sir or Madam: We hereby establish .
our Irrevocable Standby Letter of Credit No
, in the favor of ["any and all .
third-party liability claimants" or insert name
of trustee of the standby trust fund], at the
request and for the account of [owner or
operator's-, name and address] for third-parry
liability awards or settlements up to-[in
words j 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 daimant(s)], hereby certify that
the claim of bodily injury and/or property
damage caused by a [sudden or norisudden]
accidental occurrence arising from operations
of [principal's^hazardous waste treatment
storage, or disposal facility should be paid in
the amount.of $[ ]. We hereby certify
that the claim does not apply to any of the
following:
(a) Bodily injury or property damage for
which [insert principal] is obligated to pay
damages by reason of die assumption of
liability in a contract on agreement This
exclusion does not apply to liability for
damages- that [insert principal} would be
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Rster/ Voi.No. 180 /
September 16, .1992 / Rules and Regulations
obligated to pay in the absence of the
contract or agreement
(b) Any obligation of [insert principal]
under a workers' compensation, disability
benefits, or unemployment compensation law
or any similar law.
(c} Bodily injury to:
(1) An employee of [insert principal] arising
from, and in the course of, employment by
[insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of,
or arising from, and in the course of
employment by [insert principal].
This exclusion applies:
(A) Whether [insert principal] may be
liable as an employer or in any other
capacity; and
(B) To any obligation to share damages
with or repay another person who must pay
damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury of property damage
arising out of the" ownership, maintenance,
use, or entrustment to others of any aircraft.
motor vehicle or watercraft.
fe) Property damage to:
(l) 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)iProperty 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] i
Claimants} '.
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 oh [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 USEPA Regional
Administrator for Region [Region #], 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
40 CFR 264.151(k) as such regulations were . y
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
by the International Chamber of Commerce"
or "the Uniform Commercial Code"].
* * * * *
(n)(l) A standby trust agreement, as
specified in ง 264.147(h) or 265.147(h) of
this chapter, must be worded as follows,
except that instructions in brackets are
to be replaced with the relevant
information and the brackets deleted:
Standby Trust Agreement ,
Trust Agreement, the "Agreement," entered
into as of [date] by and between (name of the
owner or.operator] a [name of a State] [insert
"corporation," "partnership," "association;"
or "proprietorship"], the "Grantor," and
[name of corporate trustee], [insert,
"incorporate^ in the State of "
or "a national bank"], the "trustee."
Whereas the United States Environmental
Protection Agency, "EPA," an agency of the
United States Government, has established
certain regulations applicable to the Grantor,
requiring that an owner or operator of a
hazardous waste management facility or
group of facilities must demonstrate financial
responsibility for bodily injury and property
damage to third parties caused by sudden
accidental and/or nonsudden accidental
occurrences arising from operations of the
facility or group of facilities.
Whereas, the Grantor has elected to-
establish a standby trust into which the
proceeds from a letter of credit may bg
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 arid the Trustee is willing to act
as trustee.
Now, therefore, the Grantor and the
Trustee agree as follows:
Section i. Definitions. As used in this
Agreement:
[a) The term Grantor means the owner or
operator who enters into this Agreement and
any successors or assigns of the Grantor.
(b) The term Trustee means the Trustee
who enters into this Agreement and any
successor Trustee.
Section 2. Identification of Facilities. This
agreement pertains to the facilities identified
on attached schedule A [on schedule A, for
each facility list the EPA Identification
Number, name, and address of the
facilityfles) 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 ami/or nonsudden]
accidental occurrences arising from operation
of the facility(ies) covered by this guarantee,
in the amounts nf -- ---. -.ป.-, [up to $1
million] per, occurrence and
[up to $2 million] annual aggregate for sudden
"accidental occurrences and
[up to S3 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. Tnis
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:
ft) An employee or [insert Grantor] arising
from, and in the course of,.employment by
[insert Grantor]; or .
' (2) The spouse, child, parent,-brother or
sister of that employee as a consequence of,
or arising.from, and in the course of
employment by [insert Grantor].
This" exclusion applies:
(A) Whether {insert Grantor] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages
with or repay another person who must pay
damages because of the injury to persons
identified in paragraphs (1) and (2). ' -
(d) Bodily injury or property damage
arising out of tiie ownership, maintenance,
use, or entrustment to others of any aircraft,
motor vehicle or watercraft.
(e) Property damage to:
. {!) 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 {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 Tae Fund shall be held by the .
Trustee, IN TRUST, as hereinafter provided.
The Trustee shailnot.be responsible nor shaif
it undertake any responsibility for lha ' '
amount or adequacy of, nor any duty fo - ~.
-------
Register /.Vo].
Wednesday. Se^tetober 16^ 1992 / yRulea and R6gulatloiis
collect from the: Grantor, $ny payments .
necessary to discharge any liabilities of .the
Grantor established by EPA. - . ; '
, ^SoctlonfrPaymeatfor Bodily ihjury.pr
Property Damage. The Trustee shall satisfy a,
* third party liability claim by drawing on the ,
letter of credit described in Schedule & 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^} that the liability claim
should be paid. The certification must be .
worded as follows, except that instructions in
brackets are to be replaced with the relevant
information and the brackets deleted:
Certification of Valid Claim *
The undersigned, as parties [insert
Grantor] and [insert name and address of-
, third party claimants)], hereby certify that
tfte claim of bodily injury and/or property
damage caused by a_ [sudden or nonsudden]
accidental occurrence arising from operating
[Grantor's] hazardous) waste treatment,
'storage, or disposal facility should be paid in
the amount of S[ ].'
[Signature] , -
Grantor : :;:
,. [Signatures] , , . ' ' . , . :
ClaJmant{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 6. Payments: Comprising the Fund. ,
' Poymenfjj made to the trustee for the Fund
shall consist of the proceeds from the letter of
credit drawn upoaCby the Trustee in _"" .
accordance with the requirements .of 40 CFR
, 284.151fk) 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 lime 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 the1 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 '
mailers, would USB in the conduct of an
> enterprise of a like character and with like'
aims; except that: .
(t) 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
1 WO. as amended, 15 U.S.C. 80a-2(a), shall
not he acquired or held, unless they are
securities or other obligations of the Federal
or n State government ' ซ
(11} The Trustee is authorized to invest the
Fund in time or demand deposits of the
Trustee, to the e.xtent insured by an agency of
the Federal or a State government; and .
- (Ui) 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 tnvestme/it: ''
The Trustee is expressly authorized in its f
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 |940,15 U.S.C. 80a^-l et seq.,
including one which may be created,
managed, underwritten, or to which
investment advice is rendered or the shares .
of which are sold by the Trustee. The Trustee
may vote such shares in its'discretion.
Section 8. Express Powers of Trustee. "
Without in any way limiting the powers and
discretions conferred upon the Trustee by the
other provisions of this Agreement or-by law,
the.Trustee is .expressly authorized and
empowered: , . . ,
(a) To sell, exchange, convey, transfer, pr..
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 Sank, but the books and records of
the Trustee shall at all. times show that all
such securities are part of the Fund;
(dj 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 GrShtor,:arid all other proper charges and '
' disbursements to the Trustee shall -be paid '
from the Fund. - '"' "
Section110. 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 qourt 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 EPA "
Regional Administrator 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 ds provided in Section 9.
Section 13. instructions to the Trustee. AH
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 EPA
Regional Administrator 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
EPA, 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 EPA Regional -
Administrator, or by the Trustee and the EPA
Regional Administrator 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 EPA
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Federal Register / Vol. 57, No. 180 / Wednesday, September 16, 1992 /Rules and Regulations 42843
Regional Administrator, or by the Trustee
and the EPA Regional Administrator, 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 Regional Administrator will agree to
termination of the Trust when the owner or
operator substitutes alternative financial
assurance as specified in this section. '
Section 16. Immunity and indemnification.
The Trustee shall not incur personal liability
of any nature in connection with any act or
omission, made in good faith, in the
administration of this Trust, or in carrying out
any directions by the Grantor and the EPA
Regional Administrator 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 reasonable 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
[enter name of State].-
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
wr,itten. The. parties below certify that the
wording of this Agreement is identical to the
wording.specified in 40 CFR 264.15i(n) as
such regulations were constituted on the date
first above written. '..-.;
[Signature of Grantor]
[Title]
Attest: .-: . .
[Title] .
(Seal]
[Signature of Trustee]
Attest:
[Title] '
[Seal]
(2) The following is an example of the
certification of acknowledgement which must
accompany the trust agreement for a standby
trust fund as specified in section 264.147(h) or
265.147(h) of this chapiter. State requirements
may differ on the proper content of this
acknowledgement. '
State of '.' '
County of
On this [date], before, me personally came
[owner or operator] to ineknpwn, 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 th& Board of Directors
of said corporation, and that she/he signed
her/his name thereto by like order.
[Signature of Notary Public]
40 CFR part 265 is amended as
follows:
PART 265INTERIM STATUS v
STANDARDS FOR OWNERS OR
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL FACILITIES
1. The authority citation for part 265
continues to read as follows:
Authority: 42 U.S.C. 6805, 6912{a), 6924.
6925, and 6935.
2. Section 265.143 is amended by
revising the introductory text of
paragraph (ej(10) to read as follows:
ง 265.143 Financial assurance for closure.
* * * * *
{e) * * * ,
(10) An owner or operator may meet
the requirements of this section by
obtaining a written guarantee. The
guarantor must be the direct or higher-
tier parent corporation of the owner or
operator, a firm whose parent
corporation is also the parent
corporation of the owner or operator, or
a firm with a "substantial business
relationship" with the owner or , .-
operator, "fhe guarantor must meet the
requirements for owners or operators in
paragraphs '(e)(l) through (8) of this
section and must comply with the terms
of the guarantee. The .wording of the
guarantee must be identical to the
wording specified in ง 264.151(h). A
certified copy of the guarantee must
accompany the items sent to the
Regional Administrator as specified in
paragraph (e)(3) of this section. One of
these items must be the letter from the
guarantor's chief financial officer. If the
guarantor's parent corporation is also
the parent corporation of the owner or
operator, the letter must describe the
. value received in consideration of the
guarantee. If the guarantor is a firm with
a "substantial business relationship"
with the owner or operator, this letter .
must describe this "substantial business
relationship" and the value received in
consideration of the guarantee. The
terms of the guarantee .must provide
that: . ....
* * * , * *, - ;.:.... . ,
3. Section 265.145 is amended by ''
revising the introductory text of '
paragraph (e)(ll) to read as follows:
ง 265.145 Financial assurance for post-
closure care. -_.-.
-* * .*,-"*' '/. >. -' "-. .'.-':
(e) * * *-..-'
(11) An owner or operator may meet
the requirements of this section by
obtaining a written guarantee. The
guarantor must be the director higner-
tier parent corporation of the-owner or
operator, a firm whose parent
corporation is also the parent
corporation of the owner or operator, or
a firm with a "substantial business
relationship" with the owner or
operator. The guarantor must meet the
requirements for owners or operators in
paragraphs (e)(l) through (9) of this
section and must comply with the terms
of the guarantee. The wording of the
guarantee must be identical to the
wording specified in ง 264.151(h). A
certified copy of the guarantee must ;
accompany the items sent to the
Regional Administrator as specified in
paragraph fe)(3) of this section. One.of
these items must be the letter from the
guarantor's chief financial officer. If the
guarantor's .parent corporation is also
the parent corporation of the owner or
operator, the letter must describe the
value received in consideration of the
guarantee. If the guarantor is a firm with
a "substantial business relationship"
with the owner or operator, this letter
must describe this "substantial business
relationship" and the value received in -
consideration of the guarantee. The
terms of the guarantee must provide
that:
* *' .*.-*, * ' " '' ! ' ' '
4^ Section 265.147. is amended by ,
revising paragraphs (a)(7), (b}(7), and
(f)(6), and by adding new paragraphs
(h)(4) arid (h){5) to read as follows:
ง265.147 Liability requirements. ,
(a)* *..* -'. . ;-.- .'" :
(7) An owner or operator shall notify
the Regional Administrator in writing
within 30 days whenever:
(i) A claim results in a reduction in the
amount of financial assurance for-
liability coverage provided by a
financial instrument authorized in
paragraphs (a)(l) through (a)(6) of this
section; or
(ii) A Certification of Valid Claim for
bodily injury or property damages
caused by a sudden or non-sudden
accidental occurrence arising froni the
operation of a hazardous waste
treatment, storage, or disposal facility is
entered between the owner or operator-
and third-party claimant for liability
coverage -tinder paragraphs (a)(l) ,
.through (a)(6) of this section; or, .;,
(iii) A final court order establishing a
judgment for bodily injury or property
-------
'damage".cau8e41>y,a sudden or nbn-
audclph acddenfal.qccurrencei arising
from tfie operation of a hazardous waste
treatment, stordge, or disposal facility is
issued against the owner or operator or
'an instrument that is providing financial
assurance for liability coverage under
paragraphs (a](l] through (a)(6) of this.
section.
(bj. . . : ,. . -
[71 An owner'or Operator shall notify
the Regional Administrator in writing
within 30 days whenever:.
(i) A claim results in a reduction in the
amount of financial a$Burance for
liability coverage provided by a
: financial instrument authorized in
paragraphs (b)(l)ithrQugh (b}(6) of this .
section; or ,' , ., :,. ; -
(ii) A Certification of Valid Claim for
bodily injury or property damages'
, caused by a sudden of non-sudden
accidental occurrence arising from the
operation of a-hazardbus'waste ' '
treatment, storage, 6Y disposal facility is
entered between the owner; or .operator
and third-party claimant.for liability
. coverage under paragraphs (b){l)
through (b){6) of this section! or
- (iii) A final court order estab^hing a ,
judgment for bodily injury .or property
damage caused by a sudden or non-
sudden accidental occurrence arising -
from the operation of a hazardous waste
treatment, storage, or disposal facility is
issued against the owner or operator, or
an instrument that is providing financial
assurance for liability, coverage under,.
paragrapho (b)(l) through (b)(6) of this.
section.-'- .. ;..-. .-. .:-;' ,,.:"/',:.' ;..>;:
* ' * *,**'.'"-.' .'. .
m*'**'.;. "..''!;.- ,: .:
(6) If the owner or operator no longer
meets the requirements of paragraph
(f](l) of this- section, he must obtain
insurance, a letter of credit, a surety
bond, a trust fund, or a guarantee for the
entire amount of required liability
coverage as specified in this section.
Evidence of liability coverage must be
submitted to.the Regional Administrator
within 90 days after the end of the fiscal
'yeair for,. which the year-end financial . .
data, show that:the owner or operator no
longer meets the. test requirements.
' ' '
.. . .
(4) An owner or operator who uses a , <
letter of credit, to satisfy the
requirements of this section may also . :;
: establish a standby trust fund. Under
the' terms .of such a letter of credit, all :
. amounts paid pursuant to a draft by the
trustee of the standby trust will be ; ; ,
deposited by the issuing institution into .
. the standby trust in accordance with
instructions from the trustee. The trustee
of the standby trust fund must be an
entity which has the authority to ;act as
a. trustee and whose trust operations are:
.regulated and examined by a Federal or
State agency. .
(5) The wording of the standby trust
fund, must be identical to the wording
specified in ง264.151(n).
* *. * * *
(FR Doc. 92-22248 Filed ft-15-92; 8:45 am]
BILLING CODE 6560-50-M
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