Current through March 14, 2024
(a)
Applicability.
(1) Section
22a-449(d)
-109 of these regulations applies to owners and operators of all petroleum
underground storage tank (UST) systems except as otherwise provided in
subsection
22a-449(d)
-109 (a) of these regulations.
(2)
Owners and operators of petroleum UST systems are subject to these requirements
if they are in operation on or after the date for compliance established in
subsection
22a-449(d)
-109 (b) of these regulations.
(3)
State and Federal government entities whose debts and liabilities are the debts
and liabilities of a state or the United States are exempt from the
requirements of this section.
(4)
The requirements of this section do not apply to owners and operators of any
UST system described in subdivisions
22a-449(d)
-101 (a) (2) and (3) of these regulations.
(5) If the owner and operator of a petroleum
underground storage tank are separate persons, only one person is required to
demonstrate financial responsibility; however, both parties are liable in event
of noncompliance. Regardless of which party complies, the date set for
compliance at a particular facility is determined by the characteristics of the
owner as set forth in subsection
22a-449(d)
-109 (b) of these regulations.
(b)
Compliance dates. Owners of
petroleum underground storage tanks are required to comply with the
requirements of section
22a-449(d)
-109 of these regulations by the following dates:
(1) All petroleum marketing firms owning
1,000 or more USTs and all other UST owners that report a tangible net worth of
$20 million or more to the U.S. Securities and Exchange Commission (SEC), Dun
and Bradstreet, the Energy Information Administration, or the Rural
Electrification Administration; January 24, 1989, except that compliance with
subdivision
22a-449(d)
-109 (e) (2) of these regulations is required by: July 24, 1989.
(2) All petroleum marketing firms owning
100-999 USTs; October 26, 1989.
(3)
All petroleum marketing firms owning 13-99 USTs at more than one facility;
April 26, 1991.
(4) All petroleum
UST owners not described in subdivisions
22a-449(d)
-109 (b) (1), (2) and (3) of these regulations, excluding local government
entities; October 26, 1991.
(5) All
local government entities; one year from the date of promulgation of additional
mechanisms for use by local government entities to comply with financial
responsibility requirements for underground storage tanks containing
petroleum.
(c)
Definition of terms.
When used in section
22a-449(d)
-109 of these regulations, the following terms shall have the meanings given
below:
(1) Accidental release means
any sudden or nonsudden release of petroleum from an underground storage tank
that results in a need for corrective action and/or compensation for bodily
injury or property damage neither expected nor intended by the tank owner or
operator;
(2) Bodily injury shall
have the meaning given to this term by applicable state law; however, this term
shall not include those liabilities which, consistent with standard insurance
industry practices, are excluded from coverage in liability insurance policies
for bodily injury;
(3) Controlling
interest means direct ownership of at least 50 percent of the voting stock of
another entity;
(4) Director of the
Implementing Agency means the Commissioner of Environmental Protection of the
State of Connecticut, or the Commissioner's designee;
(5) Financial reporting year means the latest
consecutive twelve-month period for which any of the following reports used to
support a financial test is prepared:
(A) A
10-K report submitted to the SEC;
(B) An annual report of tangible net worth
submitted to Dun and Bradstreet; or
(C) Annual reports submitted to the Energy
Information Administration or the Rural Electrification Administration.
"Financial reporting year" may thus comprise a fiscal or a calendar year
period;
(6) Legal
defense cost is any expense that an owner or operator or provider of financial
assurance incurs in defending against claims or actions brought,
(A) By EPA or a state to require corrective
action or to recover the costs of corrective action;
(B) By or on behalf of a third party for
bodily injury or property damage caused by an accidental release; or
(C) By any person to enforce the terms of a
financial assurance mechanism;
(7) Occurrence means an accident, including
continuous or repeated exposure to conditions, which results in a release from
an underground storage tank;
(A) This
definition is intended to assist in the understanding of these regulations and
is not intended either to limit the meaning of "occurrence" in a way that
conflicts with standard insurance usage or to prevent the use of other standard
insurance terms in place of "occurrence";
(8) Owner or operator, when the owner or
operator are separate parties, refers to the party that is obtaining or has
obtained financial assurances;
(9)
Petroleum marketing facilities include all facilities at which petroleum is
produced or refined and all facilities from which petroleum is sold or
transferred to other petroleum marketers or to the public;
(10) Petroleum marketing firms are all firms
owning petroleum marketing facilities. Firms owning other types of facilities
with USTs as well as petroleum marketing facilities are considered to be
petroleum marketing firms;
(11)
Property damage shall have the meaning given this term by applicable state law.
This term shall not include those liabilities which, consistent with standard
insurance industry practices, are excluded from coverage in liability insurance
policies for property damage. However, such exclusions for property damage
shall not include corrective action associated with releases from tanks which
are covered by the policy;
(12)
Provider of financial assurance means an entity that provides financial
assurance to an owner or operator of an underground storage tank through one of
the mechanisms listed in subsections
22a-449(d)
-109 (f) to (n), inclusive, of these regulations, including a guarantor,
insurer, risk retention group, surety, issuer of a letter of credit, issuer of
a state-required mechanism, or a state;
(13) Substantial business relationship means
the extent of a business relationship necessary under applicable state law to
make a guarantee contract issued incident to that relationship valid and
enforceable. A guarantee contract is issued "incident to that relationship" if
it arises from and depends on existing economic transactions between the
guarantor and the owner or operator;
(14) Tangible net worth means the tangible
assets that remain after deducting liabilities; such assets do not include
intangibles such as goodwill and rights to patents or royalties. For purposes
of this definition, "assets" means all existing and all probable future
economic benefits obtained or controlled by a particular entity as a result of
past transactions; and
(15)
Termination under subdivisions
22a-449(d)
-109 (h) (2) (A) and (B) of these regulations means only those changes that
could result in a gap in coverage as where the insured has not obtained
substitute coverage or has obtained substitute coverage with a different
retroactive date than the retroactive date of the original policy.
(d)
Amount and scope of
required financial responsibility.
(1)
Owners or operators of petroleum underground storage tanks shall demonstrate
financial responsibility for taking corrective action and for compensating
third parties for bodily injury and property damage caused by accidental
releases arising from the operation of petroleum underground storage tanks in
at least the following per-occurrence amounts:
(A) For owners or operators of petroleum
underground storage tanks that are located at petroleum marketing facilities,
or that handle an average of more than 10,000 gallons of petroleum per month
based on annual throughput for the previous calendar year; $1
million.
(B) For all other owners
or operators of petroleum underground storage tanks; $500,000.
(2) Owners or operators of
petroleum underground storage tanks shall demonstrate financial responsibility
for taking corrective action and for compensating third parties for bodily
injury and property damage caused by accidental releases arising from the
operation of petroleum underground storage tanks in at least the following
annual aggregate amounts:
(A) For owners or
operators of 1 to 100 petroleum underground storage tanks, $1 million;
and
(B) For owners or operators of
101 or more petroleum underground storage tanks, $2 million.
(3) For the purposes of
subdivisions
22a-449(d)
-109 (d) (2) and (6) of these regulations, only, "a petroleum underground
storage tank" means a single containment unit and does not mean combinations of
single containment units.
(4)
Except as provided in subdivisions
22a-449(d)
-109 (d) (5) of these regulations, if the owner or operator uses separate
mechanisms or separate combinations of mechanisms to demonstrate financial
responsibility for:
(A) Taking corrective
action;
(B) Compensating third
parties for bodily injury and property damage caused by sudden accidental
releases; or
(C) Compensating third
parties for bodily injury and property damage caused by nonsudden accidental
releases, the amount of assurance provided by each mechanism or combination of
mechanisms shall be in the full amount specified in subdivisions
22a-449(d)
-109 (d) (1) and (2) of these regulations.
(5) If an owner or operator uses separate
mechanisms or separate combinations of mechanisms to demonstrate financial
responsibility for different petroleum underground storage tanks, the annual
aggregate required shall be based on the number of tanks covered by each such
separate mechanism or combination of mechanisms.
(6) Owners or operators shall review the
amount of aggregate assurance provided whenever additional petroleum
underground storage tanks are acquired or installed. If the number of petroleum
underground storage tanks for which assurance shall be provided exceeds 100,
the owner or operator shall demonstrate financial responsibility in the amount
of at least $2 million of annual aggregate assurance by the anniversary of the
date on which the mechanism demonstrating financial responsibility became
effective. If assurance is being demonstrated by a combination of mechanisms,
the owner or operator shall demonstrate financial responsibility in the amount
of at least $2 million of annual aggregate assurance by the first-occurring
effective date anniversary of any one of the mechanisms combined (other than a
financial test or guarantee) to provide assurance.
(7) The amounts of assurance required under
section
22a-449(d)
-109 of these regulations exclude legal defense costs.
(8) The required per-occurrence and annual
aggregate coverage amounts do not in any way limit the liability of the owner
or operator.
(e)
Allowable mechanisms and combinations of mechanisms.
(1) Subject to the limitations of subdivision
22a-449(d)
-109 (e) (2) and (3) of these regulations, an owner or operator may use any one
or combination of the mechanisms listed in subsections
22a-449(d)
-109 (f) to (n), inclusive, of these regulations to demonstrate financial
responsibility under this section for one or more underground storage
tanks.
(2) An owner or operator may
use a guarantee or surety bond to establish financial responsibility only if
the Attorney(s) General of the state(s) in which the underground storage tanks
are located has (have) submitted a written statement to the implementing agency
that a guarantee or surety bond executed as described in this section is a
legally valid and enforceable obligation in that state.
(3) An owner or operator may use
self-insurance in combination with a guarantee only if, for the purpose of
meeting the requirements of the financial test under this rule, the financial
statements of the owner or operator are not consolidated with the financial
statements of the guarantor.
(f)
Financial test of
self-insurance.
(1) An owner or
operator, and/or guarantor, may satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations by passing a financial test as specified in this
section. To pass the financial test of self-insurance, the owner or operator,
and/or guarantor shall meet the criteria of subdivisions
22a-449(d)
-109 (f) (2) or (3) of these regulations based on year-end financial statements
for the latest completed fiscal year.
(2)
(A) The
owner or operator, and/or guarantor, shall have a tangible net worth of at
least ten times:
(i) The total of the
applicable aggregate amount required by subsection
22a-449(d)
-109 (d) of these regulations, based on the number of underground storage tanks
for which a financial test is used to demonstrate financial responsibility to
EPA under this section or to a state implementing agency under a state program
approved by EPA under 40 CFR part 281;
(ii) The sum of the corrective action cost
estimates, the current closure and post-closure care cost estimates, and amount
of liability coverage for which a financial test is used to demonstrate
financial responsibility to EPA under
40 CFR
264.101,
264.143,
264.145,
265.143,
165.145,
264.147,
and
265.147 or
to a state implementing agency under a state program authorized by EPA under 40
CFR part 271; and
(iii) The sum of
current plugging and abandonment cost estimates for which a financial test is
used to demonstrate financial responsibility to EPA under
40 CFR
144.63 or to a state implementing agency
under a state program authorized by EPA under 40 CFR part 145.
(B) The owner or operator, and/or
guarantor, shall have a tangible net worth of at least $10 million.
(C) The owner or operator, and/or guarantor,
shall have a letter signed by the chief financial officer worded as specified
in subdivision
22a-449(d)
-109 (f) (4) of these regulations.
(D) The owner or operator, and/or guarantor,
shall either:
(i) File financial statements
annually with the U.S. Securities and Exchange Commission, the Energy
Information Administration, or the Rural Electrification Administration;
or
(ii) Report annually the firm's
tangible net worth to Dun and Bradstreet, and Dun and Bradstreet shall have
assigned the firm a financial strength rating of 4A or 5A.
(E) The firm's year-end financial statements,
if independently audited, cannot include an adverse auditor's opinion, a
disclaimer of opinion, or a "going concern" qualification.
(3)
(A) The
owner or operator, and/or guarantor shall meet the financial test requirements
of
40 CFR 264.147(f)
(1), substituting the appropriate amounts
specified in subdivisions
22a-449(d)
-109 (d) (2) (A) and (B) of these regulations for the "amount of liability
coverage" each time specified in that section.
(B) The fiscal year-end financial statements
of the owner or operator, and/or guarantor, shall be examined by an independent
certified public accountant and be accompanied by the accountant's report of
the examination.
(C) The firm's
year-end financial statements cannot include an adverse auditor's opinion, a
disclaimer of opinion, or a "going concern" qualification.
(D) The owner or operator, and/or guarantor,
shall have a letter signed by the chief financial officer, worded as specified
in subdivision
22a-449(d)
-109 (f) (4) of these regulations.
(E) If the financial statements of the owner
or operator, and/or guarantor, are not submitted annually to the U.S.
Securities and Exchange Commission, the Energy Information Administration or
the Rural Electrification Administration, the owner or operator, and/or
guarantor, shall obtain a special report by an independent certified public
accountant stating that:
(i) He has compared
the data that the letter from the chief financial officer specifies as having
been derived from the latest year-end financial statements of the owner or
operator, and/or guarantor, with the amounts in such financial statements;
and
(ii) In connection with that
comparison, no matters came to his attention which caused him to believe that
the specified data should be adjusted.
(4) To demonstrate that it meets the
financial test under subdivisions
22a-449(d)
-109 (f) (2) or (3) of these regulations, the chief financial officer of the
owner or operator, or guarantor, shall sign, within 120 days of the close of
each financial reporting year, as defined by the twelve-month period for which
financial statements used to support the financial test are prepared, a letter
worded exactly as follows, except that the instructions in brackets are to be
replaced by the relevant information and the brackets deleted:
LETTER FROM CHIEF FINANCIAL OFFICER
I am the chief financial officer of [insert: name and address
of the owner or operator, or guarantor]. This letter is in support of the use
of [insert: "the financial test of self-insurance," and/or "guarantee"] to
demonstrate financial responsibility for [insert: "taking corrective action"
and/or "compensating third parties for bodily injury and property damage"]
caused by [insert: "sudden accidental releases" and/or "nonsudden accidental
releases"] in the amount of at least [insert: dollar amount] per occurrence and
[insert: dollar amount] annual aggregate arising from operating (an)
underground storage tank(s).
Underground storage tanks at the following facilities are
assured by this financial test or a financial test under an authorized State
program by this [insert: "owner or operator," and/or "guarantor"]: [List for
each facility: the name and address of the facility where tanks assured by this
financial test are located, and whether tanks are assured by this financial
test or a financial test under a State program approved under 40 CFR part 281.
If separate mechanisms or combinations of mechanisms are being used to assure
any of the tanks at this facility, list each tank assured by this financial
test or a financial test under a State program authorized under 40 CFR part 281
by the tank identification number provided in the notification submitted
pursuant to subsection
22a-449(d)
-102 (b) of these regulations or the corresponding State requirements.]
A [insert: "financial test," and/or "guarantee"] is also used
by this [insert: "owner or operator," or "guarantor"] to demonstrate evidence
of financial responsibility in the following amounts under other EPA
regulations or state programs authorized by EPA under 40 CFR parts 271 and
145:
EPA Regulations |
Amount |
Closure (
40 CFR
264.143 and
265.143
) |
$_________ |
Post-Closure Care (
40 CFR
264.145 and 165.145 ) |
$_________ |
Liability Coverage (
40 CFR
264.147 and
265.147
) |
$_________ |
Corrective Action (
40 CFR
264.101(b) ) |
$_________ |
Plugging and Abandonment (
40 CFR
144.63 ) |
$_________ |
Closure |
$_________ |
Post-Closure Care |
$_________ |
Liability Coverage |
$_________ |
Corrective Action |
$_________ |
Plugging and Abandonment |
$_________ |
Total |
$_________ |
This [insert: "owner or operator," or "guarantor"] has not
received an adverse opinion, a disclaimer of opinion, or a "going concern"
qualification from an independent auditor on his financial statements for the
latest completed fiscal year.
[Fill in the information for Alternative I if the criteria of
subdivisions
22a-449(d)
-109 (f) (2) of these regulations are being used to demonstrate compliance with
the financial test requirements. Fill in the information for Alternative II if
the criteria of subdivisions
22a-449(d)
p109 (f) (3) of these regulations are being used to demonstrate compliance with
the financial test requirements.]
Alternative I
1. Amount of annual UST aggregate coverage being
assured by a financial test, and/or guarantee |
$_________ |
2. Amount of corrective action, closure and
post-closure care costs, liability coverage, and plugging and abandonment costs
covered by a financial test, and/or guarantee |
$_________ |
3. Sum of lines 1 and 2 |
$_________ |
4. Total tangible assets |
$_________ |
5. Total liabilities [if any of the amount reported on
line 3 is included in total liabilities, you may deduct that amount from this
line and add that amount to line 6] |
$_________ |
6. Tangible net worth [subtract line 5 from line
4] |
$_________ |
Yes |
No |
7. Is line 6 at least $10 million? |
$_________ |
_________ |
8. Is line 6 at least 10 times line 3? |
$_________ |
_________ |
9. Have financial statements for the latest fiscal year
been filed with the Securities and Exchange Commission? |
$_________ |
_________ |
10. Have financial statements for the latest fiscal
year been filed with the Energy Information Administration? |
$_________ |
_________ |
11. Have financial statements for the latest fiscal
year been filed with the Rural Electrification Administration? |
$_________ |
_________ |
12. Has financial information been provided to Dun and
Brad-street, and has Dun and Bradstreet provided a financial strength rating of
4A or 5A? [Answer "Yes" only if both criteria have been met.] |
$_________ |
_________ |
Alternative II
1. Amount of annual UST aggregate coverage being
assured by a test, and/or guarantee |
$_________
|
2. Amount of corrrective action, closure and
post-closure care costs, liability coverage, and plugging and abandonment costs
covered by a financial test, and/or guarantee |
$_________ |
3. Sum of lines 1 and 2 |
$_________ |
4. Total tangible assets |
$_________ |
5. Total liabilities [if any of the amount reported on
line 3 is included in total liabilities, you may deduct that amount from this
line and add that amount to line 6] |
$_________ |
6. Tangible net worth [subtract line 5 from line
4] |
$_________ |
7. Total assets in the U.S. [required only if less than
90 percent of assets are located in the U.S.] |
$_________ |
Yes |
No |
8. Is line 6 at least $10 million? |
$_________ |
_________ |
9. Is line 6 at least 6 times line 3?. |
$_________ |
_________ |
10. Are at least 90 percent of assets located in the
U.S.? [If "No," complete line 11.] |
$_________ |
_________ |
11. Is line 7 at least 6 times line 3? [Fill in either
lines 12-15 or lines 16-18:] |
$_________ |
_________ |
12. Current assets |
_________ |
13. Current liabilities |
$_________ |
14. Net working capital [subtract line 13 from line
12] |
$_________ |
15. Is line 14 at least 6 times line 3? |
$_________ |
_________ |
16. Current bond rating of most recent bond
issue |
$_________ |
_________ |
17. Name of rating service |
$_________ |
_________ |
18. Date of maturity of bond |
$_________ |
_________ |
19. Have financial statements for the latest fiscal
year been filed with the SEC, the Energy Information Administration, or the
Rural Electrification Administration? |
$_________ |
_________ |
[If "No," please attach a report from an independent certified
public accountant certifying that there are no material differences between the
data as reported in lines 4-18 above and the financial statements for the
latest fiscal year.]
[For both Alternative I and Alternative II complete the
certification with this statement.]
I hereby certify that the wording of this letter is identical
to the wording specified in subdivision
22a-449(d)
-109 (f) (4) of these regulations as such regulations were constituted on the
date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
(5)
If an owner or operator using the test to provide financial assurance finds
that he or she no longer meets the requirements of the financial test based on
the year-end financial statements, the owner or operator shall obtain
alternative coverage within 150 days of the end of the year for which financial
statements have been prepared.
(6)
The Director of the implementing agency may require reports of financial
condition at any time from the owner or operator, and/or guarantor. If the
Director finds, on the basis of such reports or other information, that the
owner or operator, and/or guarantor, no longer meets the financial test
requirements of subdivisions
22a-449(d)
-109 (f) (2) or (3) and (4) of these regulations, the owner or operator shall
obtain alternate coverage within 30 days after notification of such a
finding.
(7) If the owner or
operator fails to obtain alternate assurance within 150 days of finding that he
or she no longer meets the requirements of the financial test based on the
year-end financial statements, or within 30 days of notification by the
Director of the implementing agency that he or she no longer meets the
requirements of the financial test, the owner or operator shall notify the
Director of such failure within 10 days.
(g)
Guarantee.
(1) An owner or operator may satisfy the
requirements of subsections
22a-449(d)
-109 (d) of these regulations by obtaining a guarantee that conforms to the
requirements of section
22a-449(d)
-109 (g) of these regulations. The guarantor shall be:
(A) A firm that
(i) possesses a controlling interest in the
owner or operator;
(ii) possesses a
controlling interest in a firm described under subparagraph 22a-449 (d)-109 (g)
(1) (A) (i) of these regulations; or,
(iii) is controlled through stock ownership
by a common parent firm that possesses a controlling interest in the owner or
operator; or,
(B) A firm
engaged in a substantial business relationship with the owner or operator and
issuing the guarantee as an act incident to that business
relationship.
(2) Within
120 days of the close of each financial reporting year the guarantor shall
demonstrate that it meets the financial test criteria of subsection
22a-449(d)
-109 (f) of these regulations based on year-end financial statements for the
latest completed financial reporting year by completing the letter from the
chief financial officer described in subdivision
22a-449(d)
-109 (f) (4) of these regulations and shall deliver the letter to the owner or
operator. If the guarantor fails to meet the requirements of the financial test
at the end of any financial reporting year, within 120 days of the end of that
financial reporting year the guarantor shall send by certified mail, before
cancellation or nonrenewal of the guarantee, notice to the owner or operator.
If the Director of the implementing agency notifies the guarantor that he no
longer meets the requirements of the financial test of subdivisions
22a-449(d)
-109 (f) (2) or (3) and (4) of these regulations, the guarantor shall notify
the owner or operator within 10 days of receiving such notification from the
Director. In both cases, the guarantee shall terminate no less than 120 days
after the date the owner or operator receives the notification, as evidenced by
the return receipt. The owner or operator shall obtain alternative coverage as
specified in subdivision
22a-449(d)
-109 (u) (3) of these regulations.
(3) The guarantee shall be worded as follows,
except that instructions in brackets are to be replaced with the relevant
information and the brackets deleted:
GUARANTEE
Guarantee made this [date] by [name of guaranteeing entity], a
business entity organized under the laws of the state of [name of state],
herein referred to as guarantor, to [the state implementing agency] and to any
and all third parties, and obligees, on behalf of [owner or operator] of
[business address].
Recitals
(1) Guarantor
meets or exceeds the financial test criteria of subdivisions
22a-449(d)
-109 (f) (2) or (3) and (4) of these regulations and agrees to comply with the
requirements for guarantors as specified in subdivisions
22a-449(d)
-109 (g) (2) of these regulations.
(2) [Owner or operator] owns or operates the
following underground storage tank(s) covered by this guarantee: [List the
number of tanks at each facility and the name(s) and address(es) of the
facility(ies) where the tanks are located. If more than one instrument is used
to assure different tanks at any one facility, for each tank covered by this
instrument, list the tank identification number provided in the notification
submitted pursuant to subsection
22a-449(d)
-102 (b) of these regulations or the corresponding state requirement, and the
name and address of the facility.] This guarantee satisfies section
22a-449(d)
-109 of these regulations requirements for assuring funding for [insert:
"taking corrective action" and/or "compensating third parties for bodily injury
and property damage caused by" either "sudden accidental releases" or
"nonsudden accidental releases" or "accidental releases"; if coverage is
different for different tanks or locations, indicate the type of coverage
applicable to each tank or location] arising from operating the
above-identified underground storage tank(s) in the amount of [insert dollar
amount] per occurrence and [insert dollar amount] annual aggregate.
(3) [Insert appropriate phrase: "On behalf of
our subsidiary" (if guarantor is corporate parent of the owner or operator);
"On behalf of our affiliate" (if guarantor is a related firm of the owner or
operator); or "Incident to our business relationship with" (if guarantor is
providing the guarantee as an incident to a substantial business relationship
with owner or operator)] [owner or operator], guarantor guarantees to
[implementing agency] and to any and all third parties that:
In the event that [owner or operator] fails to provide
alternative coverage within 60 days after receipt of a notice of cancellation
of this guarantee and the [Director of the Implementing Agency] has determined
or suspects that a release has occurred at an underground storage tank covered
by this guarantee, the guarantor, upon instructions from the [Director], shall
fund a standby trust fund in accordance with the provisions of subsection
22a-449(d)
-109 (s) of these regulations, in an amount not to exceed the coverage limits
specified above.
In the event that the [Director] determines that [owner or
operator] has failed to perform corrective action for releases arising out of
the operation of the above-identified tank(s) in accordance with section
22a-449(d)
-106 of these regulations, the guarantor upon written instructions from the
[Director] shall fund a standby trust in accordance with the provisions of
subsection
22a-449(d)
-109 (s) of these regulations in an amount not to exceed the coverage limits
specified above.
If [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 releases
arising from the operation of the above-identified tank(s), 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, upon written instructions from the
[Director], shall fund a standby trust in accordance with the provisions of
subsections
22a-449(d)
-109 (s) of these regulations to satisfy such judgment(s), award(s), or
settlement agreement(s) up to the limits of coverage specified above.
(4) Guarantor agrees that if, at
the end of any fiscal year before cancellation of this guarantee, the guarantor
fails to meet the financial test criteria of subdivisions
22a-449(d)
-109 (f) (2) or (3) and (4) of these regulations, guarantor shall send within
120 days of such failure, by certified mail, notice to [owner or operator]. The
guarantee shall terminate 120 days from the date of receipt of the notice by
[owner or operator], as evidenced by the return receipt.
(5) Guarantor agrees to notify [owner or
operator] 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.
(6) Guarantor agrees to remain bound under
this guarantee notwithstanding any modification or alteration of any obligation
of [owner or operator] pursuant to sections
22a-449(d)
-101 to 109, inclusive, of these regulations.
(7) Guarantor agrees to remain bound under
this guarantee for so long as [owner or operator] shall comply with the
applicable financial responsibility requirements of section
22a-449(d)
-109 of these regulations for the above-identified tank(s), except that
guarantor may cancel this guarantee by sending notice by certified mail to
[owner or operator], such cancellation to become effective no earlier than 120
days after receipt of such notice by [owner or operator], as evidenced by the
return receipt.
(8) The guarantor's
obligation does not apply to any of the following:
(a) Any obligation of [insert owner or
operator] under a workers' compensation, disability benefits, or unemployment
compensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the course of, employment by [insert
owner or operator];
(c) Bodily
injury or property damage arising from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaded to, in the care, custody, or control of, or occupied by [insert
owner or operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e)
Bodily damage 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 other than a contract or agreement entered into to meet the
requirements of subsection
22a-449(d)
-109 (d) of these regulations.
(9) Guarantor expressly waives notice of
acceptance of this guarantee by [the implementing agency], by any or all third
parties, or by [owner or operator].
I hereby certify that the wording of this guarantee is
identical to the wording specified in subdivision
22a-449(d)
-109 (g) (3) of these regulations as such regulations were constituted on the
effective 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:
____________________________________________
(4) An owner or operator who uses a guarantee
to satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations shall establish a standby trust fund when the
guarantee is obtained. Under the terms of the guarantee, all amounts paid by
the guarantor under the guarantee shall be deposited directly into the standby
trust fund in accordance with instructions from the Director of the
implementing agency under subsection
22a-449(d)
-109 (s) of these regulations. This standby trust fund shall meet the
requirements specified in subsection
22a-449(d)
-109 (n) of these regulations.
(h)
Insurance and risk retention group
coverage.
(1) An owner or operator may
satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations by obtaining liability insurance that conforms to
the requirements of this section from a qualified insurer or risk retention
group. Such insurance may be in the form of a separate insurance policy or an
endorsement to an existing insurance policy.
(2) Each insurance policy shall be amended by
an endorsement worded as specified in subdivision
22a-449(d)
-109 (h) (2) (A) of these regulations of this section, or evidenced by a
certificate of insurance worded as specified in subdivision
22a-449(d)
-109 (h) (2) (B) of these regulations, except that instructions in brackets
shall be replaced with the relevant information and the brackets deleted:
(A) Endorsement
Name: [name of each covered location]
______________________________________________________________________
______________________________________________________________________
Address: [address of each covered location]
______________________________________________________________________
______________________________________________________________________
Policy Number:
________________________________________________________
Period of Coverage: [current policy period]
______________________________________________________________________
______________________________________________________________________
Name of [Insurer or Risk Retention Group]:
______________________________________________________________________
______________________________________________________________________
Address of [Insurer or Risk Retention Group]:
______________________________________________________________________
______________________________________________________________________
Name of Insured:
_______________________________________________________
Address of Insured:
______________________________________________________________________
_____________________________________________________________________
ENDORSEMENT:
1. This
endorsement certifies that the policy to which the endorsement is attached
provides liability insurance covering the following underground storage tanks:
[List the number of tanks at each facility and the name(s) and
address(es) of the facility(ies) where the tanks are located. If more than one
instrument is used to assure different tanks at any one facility, for each tank
covered by this instrument, list the tank identification number provided in the
notification submitted pursuant to subsection
22a-449(d)
-102 (b) of these regulations, or the corresponding state requirement, and the
name and address of the facility.] for [insert: "taking corrective action"
and/or "compensating third parties for bodily injury and property damage caused
by" either "sudden accidental releases" or "nonsudden accidental releases" or
"accidental releases"; in accordance with and subject to the limits of
liability, exclusions, conditions, and other terms of the policy; if coverage
is different for different tanks or locations, indicate the type of coverage
applicable to each tank or location] arising from operating the underground
storage tank(s) identified above.
The limits of liability are [insert the dollar amount of the
"each occurrence" and "annual aggregate" limits of the Insurer's or Group's
liability; if the amount of coverage is different for different types of
coverage or for different underground storage tanks or locations, indicate the
amount of coverage for each type of coverage and/or for each underground
storage tank or location], exclusive of legal defense costs, which are subject
to a separate limit under the policy. This coverage is provided under [policy
number]. The effective date of said policy is [date].
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 inconsistent with subsections (a) to
(e), inclusive, of this Paragraph 2 are hereby amended to conform with
subsections (a) to (e), inclusive;
a.
Bankruptcy or insolvency of the insured shall not relieve the ["Insurer" or
"Group"] of its obligations under the policy to which this endorsement is
attached.
b. The ["Insurer" or
"Group"] is liable for the payment of amounts within any deductible applicable
to the policy to the provider of corrective action or a damaged third-party,
with a right of reimbursement by the insured for any such payment made by the
["Insurer" or "Group"]. This provision does not apply with respect to that
amount of any deductible for which coverage is demonstrated under another
mechanism or combination of mechanisms as specified in subsections
22a-449(d)
-109 (f) to (m), inclusive, of these regulations.
c. Whenever requested by [a Director of an
implementing agency], the ["Insurer" or "Group"] agrees to furnish to [the
Director] a signed duplicate original of the policy and all
endorsements.
d. Cancellation or
any other termination of the insurance by the ["Insurer" or "Group"], except
for non-payment of premium or misrepresentation by the insured, 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 insured. Cancellation
for nonpayment of premium or misrepresentation by the insured shall be
effective only upon written notice and only after expiration of a minimum of 10
days after a copy of such written notice is received by the insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise
covered by the policy that are reported to the ["Insurer" or "Group"] within
six months of the effective date of cancellation or non-renewal of the policy
except where the new or renewed policy has the same retroactive date or a
retroactive date earlier than that of the prior policy, and which arise out of
any covered occurrence that commenced after the policy retroactive date, if
applicable, and prior to such policy renewal or termination date. Claims
reported during such extended reporting period are subject to the terms,
conditions, limits, including limits of liability, and exclusions of the
policy.]
I hereby certify that the wording of this instrument is
identical to the wording in subdivision
22a-449(d)
-109 (h) (2) (A) of these regulations and that the ["Insurer" or "Group"] 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 or Risk
Retention Group]
[Name of person signing]
[Title of person signing], Authorized Representative of [name
of Insurer or Risk Retention Group]
[Address of Representative]
(B) Certificate of
Insurance
Name: [name of each covered location]
______________________________________________________________________
______________________________________________________________________
Address: [address of each covered location]
______________________________________________________________________
_______________________________________________________________________
Policy Number:
________________________________________________________
Endorsement (if applicable):
______________________________________________
Period of Coverage: [current policy period]
_____________________________________________________________________
Name of [Insurer or Risk Retention Group]:
______________________________________________________________________
______________________________________________________________________
Address of [Insurer or Risk Retention Group]:
______________________________________________________________________
______________________________________________________________________
Name of Insured:
_______________________________________________________
Address of Insured:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
Certification:
1.
[Name of Insurer or Risk Retention Group], [the "Insurer" or "Group"], as
identified above, hereby certifies that it has issued liability insurance
covering the following underground storage tank(s):
[List the number of tanks at each facility and the name(s) and
address(es) of the facility(ies) where the tanks are located. If more than one
instrument is used to assure different tanks at any one facility, for each tank
covered by this instrument, list the tank identification number provided in the
notification submitted pursuant to subsection
22a-449(d)
-102 (b) of these regulations, or the corresponding state requirement, and the
name and address of the facility.]
for [insert: "taking corrective action" and/or "compensating
third parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; in accordance with and subject to the limits of liability,
exclusions, conditions, and other terms of the policy; if coverage is different
for different tanks or locations, indicate the type of coverage applicable to
each tank or location] arising from operating the underground storage tank(s)
identified above.
The limits of liability are [insert the dollar amount of the
"each occurrence" and "annual aggregate" limits of the Insurer's or Group's
liability; if the amount of coverage is different for different types of
coverage or for different underground storage tanks or locations, indicate the
amount of coverage for each type of coverage and/or for each underground
storage tank or location], exclusive of legal defense costs, which are subject
to a separate limit under the policy. This coverage is provided under [policy
number]. The effective date of said policy is [date].
2. The ["Insurer" or "Group"] 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" or "Group"] of its obligations under the
policy to which this certificate applies.
b. The ["Insurer" or "Group"] is liable for
the payment of amounts within any deductible applicable to the policy to the
provider of corrective action or a damaged third-party, with a right of
reimbursement by the insured for any such payment made by the ["Insurer" or
"Group"]. This provision does not apply with respect to that amount of any
deductible for which coverage is demonstrated under another mechanism or
combination of mechanisms as specified in subsections
22a-449(d)
-109 (f) to (m), inclusive, of these regulations.
c. Whenever requested by [a Director of an
implementing agency], the ["Insurer" or "Group"] agrees to furnish to [the
Director] a signed duplicate original of the policy and all
endorsements.
d. Cancellation or
any other termination of the insurance by the ["Insurer" or "Group"], except
for non-payment of premium or misrepresentation by the insured, 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 insured. Cancellation
for non-payment of premium or misrepresentation by the insured shall be
effective only upon written notice and only after expiration of a minimum of 10
days after a copy of such written notice is received by the insured.
[Insert for claims-made policies:
e. The insurance covers claims otherwise
covered by the policy that are reported to the ["Insurer" or "Group"] within
six months of the effective date of cancellation or non-renewal of the policy
except where the new or renewed policy has the same retroactive date or a
retroactive date earlier than that of the prior policy, and which arise out of
any covered occurrence that commenced after the policy retroactive date, if
applicable, and prior to such policy renewal or termination date. Claims
reported during such extended reporting period are subject to the terms,
conditions, limits, including limits of liability, and exclusions of the
policy.]
I hereby certify that the wording of this instrument is
identical to the wording in subdivision
22a-449(d)
-109 (h) (2) (B) of these regulations and that the ["Insurer" or "Group"] 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 or Risk
Retention Group]
[Address of Representative]
(3) Each insurance
policy shall be issued by an insurer or a risk retention group that, at a
minimum, is licensed to transact the business of insurance or eligible to
provide insurance as an excess or surplus lines insurer in one or more states.
(i)
Surety
bond.
(1) An owner or operator may
satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations by obtaining a surety bond that conforms to the
requirements of this section. The surety company issuing the bond shall be
among those listed as acceptable sureties on federal bonds in the latest
Circular 570 of the U.S. Department of the Treasury.
(2) The surety bond shall be worded as
follows, except that instructions in brackets shall be replaced with the
relevant information and the brackets deleted:
PERFORMANCE BOND
Date bond executed:
______________________________________________________
Period of coverage:
_______________________________________________________
Principal: [legal name and business address of owner or
operator]
______________________________________________________________________
Type of organization: [insert "individual," "joint venture,"
"partnership," or "corporation"]
______________________________________________________________________
State of incorporation (if applicable):
______________________________________________________________________
Surety(ies): [name(s) and business address(es)]
______________________________________________________________________
Scope of Coverage: [List the number of tanks at each facility
and the name(s) and address(es) of the facility(ies) where the tanks are
located. If more than one instrument is used to assure different tanks at any
one facility, for each tank covered by this instrument, list the tank
identification number provided in the notification submitted pursuant to
subsection
22a-449(d)
-102 (b) of these regulations, or the corresponding state requirement, and the
name and address of the facility. List the coverage guaranteed by the bond:
"taking corrective action" and/or "compensating third parties for bodily injury
and property damage caused by" either "sudden accidental releases" or
"nonsudden accidental releases" or "accidental releases" "arising from
operating the underground storage tank"].
Penal sums of bond:
Per occurrence
$________________________________________________________
Annual aggregate
$______________________________________________________
Surety's bond number:
___________________________________________________
Know All Persons by These Presents, that we, the Principal and
Surety(ies), hereto are firmly bound to [the implementing agency], in the above
penal sums 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 sums 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 sums 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 sums.
Whereas said Principal is required under Subtitle I of the
Resource Conservation and Recovery Act (RCRA), as amended, to provide financial
assurance for [insert: "taking corrective action" and/or "compensating third
parties for bodily injury and property damage caused by" either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"; if coverage is different for different tanks or locations, indicate
the type of coverage applicable to each tank or location] arising from
operating the underground storage tanks identified above, 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 ["take corrective action, in accordance with
section
22a-449(d)
-106 of these regulations and the Director of the state implementing agency's
instructions for," and/or "compensate injured third parties for bodily injury
and property damage caused by" either "sudden" or "nonsudden" or "sudden and
nonsudden"] accidental releases arising from operating the tank(s) identified
above, or if the Principal shall provide alternate financial assurance, as
specified in section
22a-449(d)
-109 of these regulations, within 120 days after the date the notice of
cancellation is received by the Principal from the Surety(ies), then this
obligation shall be null and void; otherwise it is to remain in full force and
effect.
Such obligation does not apply to any of the following:
(a) Any obligation of [insert owner or
operator] under a workers compensation, disability benefits, or unemployment
compensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the course of, employment by [insert
owner or operator];
(c) Bodily
injury or property damage arising from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaned to, in the care, custody, or control of, or occupied by [insert
owner or operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e)
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 other than a contract or agreement entered into to meet the
requirements of subsection
22a-449(d)
-109 (d) of these regulations.
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 of the Implementing Agency]
that the Principal has failed to ["take corrective action, in accordance with
section
22a-449(d)
-106 of these regulations and the Director's instructions," and/or "compensate
injured third parties"] as guaranteed by this bond, the Surety(ies) shall
either perform ["corrective action in accordance with sections
22a-449(d)
-101 to 113, inclusive, of these regulations and the Director's instructions,"
and/or "third-party liability compensation"] or place funds in an amount up to
the annual aggregate penal sum into the standby trust fund as directed by [the
Director of the Implementing Agency] under subsections
22a-449(d)
-109 (s) of these regulations.
Upon notification by [the Director] that the Principal has
failed to provide alternate financial assurance within 60 days after the date
the notice of cancellation is received by the Principal from the Surety(ies)
and that [the Director] has determined or suspects that a release has occurred,
the Surety(ies) shall place funds in an amount not exceeding the annual
aggregate penal sum into the standby trust fund as directed by [the Director]
under subsection
22a-449(d)
-109 (s) of these regulations.
The Surety(ies) hereby waive(s) notification of amendments to
applicable laws, statutes, rules, and regulations and agrees that no such
amendment shall in any way alleviate its (their) obligation on this
bond.
The liability of the Surety(ies) shall not be discharged by any
payment or succession of payments hereunder, unless and until such payment or
payments shall amount in the annual aggregate to the penal sum shown on the
face of the bond, but in no event shall the obligation of the Surety(ies)
hereunder exceed the amount of said annual aggregate penal sum.
The Surety(ies) may cancel the bond by sending notice of
cancellation by certified mail to the Principal, 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, as evidenced by the
return receipt.
The Principal may terminate this bond by sending written notice
to the Surety(ies).
In Witness Thereof, 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 subdivision
22a-449(d)
-109 (i) (2) of these regulations as such regulations were constituted on the
date this bond was executed.
Principal
[Signature(s)]___________________________________________________________
[Names(s)]
____________________________________________________________
[Title(s)]
______________________________________________________________
[Corporate seal]
Corporate Surety(ies)
[Name and address]
_____________________________________________________
[State of Incorporation]:
________________________________________________
[Liability limit]:
$________________________________________________________
[Signature(s)]
__________________________________________________________
[Names(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:
$__________________________________________________
(3) Under the terms of the bond, the surety
shall become liable on the bond obligation when the owner or operator fails to
perform as guaranteed by the bond. In all cases, the surety's liability is
limited to the per-occurrence and annual aggregate penal sums.
(4) The owner or operator who uses a surety
bond to satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations shall establish a standby trust fund when the
surety bond is acquired. Under the terms of the bond, all amounts paid by the
surety under the bond shall be deposited directly into the standby trust fund
in accordance with instructions from the Director under subsection
22a-449(d)
-109 (s) of these regulations. This standby trust fund shall meet the
requirements specified in subsection
22a-449(d)
-109 (n) of these regulations.
(j)
Letter of credit.
(1) An owner or operator may satisfy the
requirements of subsection
22a-449(d)
-109 (d) of these regulations by obtaining an irrevocable standby letter of
credit that conforms to the requirements of this section. The issuing
institution shall be an entity that has the authority to issue letters of
credit in each state where used and whose letter-of-credit operations are
regulated and examined by a federal or state agency.
(2) The letter of credit shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
IRREVOCABLE STANDBY LETTER OF CREDIT
[Name and address of issuing institution]
[Name and address of Director(s) of state implementing
agency(ies)]
Dear Sir or Madam: We hereby establish our Irrevocable Standby
Letter of Credit No. -- in your favor, at the request and for the account of
[owner or operator name] of [address] up to the aggregate amount of [in words]
U.S. dollars ($[insert dollar amount]), available upon presentation [insert, if
more than one Director of a state implementing agency is a beneficiary, "by any
one of you"] 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 Subtitle I of the Resource Conservation and Recovery
Act of 1976, as amended."
This letter of credit may be drawn on to cover [insert: "taking
corrective action" and/or "compensating third parties for bodily injury and
property damage caused by" either "sudden accidental releases" or "nonsudden
accidental releases" or "accidental releases"] arising from operating the
underground storage tank(s) identified below in the amount of [in words]
$[insert dollar amount] per occurrence and [in words] $[insert dollar amount]
annual aggregate:
[List the number of tanks at each facility and the name(s) and
address(es) of the facility(ies) where the tanks are located. If more than one
instrument is used to assure different tanks at any one facility, for each tank
covered by this instrument, list the tank identification number provided in the
notification submitted pursuant to subsection
22a-449(d)
-102 (b) of these regulations, or the corresponding state requirement, and the
name and address of the facility.]
The letter of credit may not be drawn on to cover any of the
following:
(a) Any obligation of
[insert owner or operator] under workers compensation, disability benefits, or
unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the course of, employment by [insert
owner or operator];
(c) Bodily
injury or property damage arising from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaned to, in the care, custody, or control of, or occupied by [insert
owner or operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e)
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 other than a contract or agreement entered into to meet the
requirements of subsection
22a-449(d)
-109 (d) of these regulations.
This letter of credit is effective as of [date] and shall
expire on [date], but such expiration date shall be automatically extended for
a period of [at least the length of the original term] on [expiration date] and
on each successive expiration date, unless, at least 120 days before the
current expiration date, we notify [owner or operator] by certified mail that
we have decided not to extend this letter of credit beyond the current
expiration date. In the event that [owner or operator] is 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 [owner or operator], as shown
on the signed return receipt.
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 or operator] in accordance with your
instructions.
We certify that the wording of this letter of credit is
identical to the wording specified in subdivision
22a-449(d)
-109 (j) (2) of these regulations 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 by the
International Chamber of Commerce," or "the Uniform Commercial Code"].
(3) An owner or operator
who uses a letter of credit to satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations shall also establish a standby trust fund when
the letter of credit is acquired. Under the terms of the letter of credit, all
amounts paid pursuant to a draft by the Director of the Implementing Agency
shall be deposited by the issuing institution directly into the standby trust
fund in accordance with instructions from the Director under subsection
22a-449(d)
-109 (s) of these regulations. This standby trust fund shall meet the
requirements specified in subsection
22a-449(d)
-109 (n) of these regulations.
(4)
The letter of credit shall be irrevocable with a term specified by the issuing
institution. The letter of credit shall provide that credit be automatically
renewed for the same term as the original term, unless, at least 120 days
before the current expiration date, the issuing institution notifies the owner
or operator by certified mail of its decision not to renew the letter of
credit. Under the terms of the letter of credit, the 120 days shall begin on
the date when the owner or operator receives the notice, as evidenced by the
return receipt.
(k)
Use of state-required mechanism.
(1) For underground storage tanks located in
a state that does not have an approved program, and where the state requires
owners or operators of underground storage tanks to demonstrate financial
responsibility for taking corrective action and/or for compensating third
parties for bodily injury and property damage, an owner or operator may use a
state-required financial mechanism to meet the requirements of subsection
22a-449(d)
-109 (d) of these regulations if the Director of the Implementing Agency
determines that the state mechanism is at least equivalent to the financial
mechanisms specified in this section.
(2) The Director of the Implementing Agency
shall evaluate the equivalency of a state-required mechanism principally in
terms of: certainty of the availability of funds for taking corrective action
and/or for compensating third parties; the amount of funds that shall be made
available; and the types of costs covered. The Director of the Implementing
Agency may also consider other factors as is necessary.
(3) The state, an owner or operator, or any
other interested party may submit to the Director of the Implementing Agency, a
written petition requesting that one or more of the state-required mechanisms
be considered acceptable for meeting the requirements of subsection
22a-449(d)
-109 (d) of these regulations. The submission shall include copies of the
appropriate state statutory and regulatory requirements and shall show the
amount of funds for corrective action and/or for compensating third parties
assured by the mechanism(s). The Director of the Implementing Agency may
require the petitioner to submit additional information as is deemed necessary
to make this determination.
(4) Any
petition under this section may be submitted on behalf of all of the state's
underground storage tank owners and operators.
(5) The Director of the Implementing Agency
shall notify the petitioner of his determination regarding the mechanism's
acceptability in lieu of financial mechanisms specified in this section.
Pending this determination, the owners and operators using such mechanisms
shall be deemed to be in compliance with the requirements of subsection
22a-449(d)
-109 (d) of these regulations for underground storage tanks located in the
state for the amounts and types of costs covered by such mechanisms.
(l)
State fund or other
state assurance.
(1) An owner or
operator may satisfy the requirements of subsection
22a-449(d)
-109 (d) of these regulations for underground storage tanks located in
Connecticut, where the Connecticut Department of Environmental Protection is
administering the requirements of section
22a-449(d)
-109 of these regulations, which assures that monies shall be available from a
state fund or state assurance program to cover costs up to the limits specified
in subsection
22a-449(d)
-109 (d) of these regulations or otherwise assures that such costs shall be
paid if the Director of the Implementing Agency determines that the state's
assurance is at least equivalent to the financial mechanisms specified in
section
22a-449(d)
-109 of these regulations.
(2) The
Director of the Implementing Agency shall evaluate the equivalency of a state
fund or other state assurance principally in terms of: Certainty of the
availability of funds for taking corrective action and/or for compensating
third parties; the amount of funds that shall be made available; and the types
of costs covered. The Director of the Implementing Agency may also consider
other factors as is necessary.
(3)
The state shall submit to the Director of the Implementing Agency, a
description of the state fund or other state assurance to be supplied as
financial assurance, along with a list of the classes of underground storage
tanks to which the funds may be applied. The Director of the Implementing
Agency may require the state to submit additional information as is deemed
necessary to make a determination regarding the acceptability of the state fund
or other state assurance. Pending the determination by the Director of the
Implementing Agency, the owner or operator of a covered class of USTs shall be
deemed to be in compliance with the requirements of subsection
22a-449(d)
-109 (d) of these regulations for the amounts and types of costs covered by the
state fund or other state assurance.
(4) The Director of the Implementing Agency
shall notify the state of his determination regarding the acceptability of the
state's fund or other assurance in lieu of financial mechanisms specified in
section
22a-449(d)
-109 of these regulations. Within 60 days after the Director of the
Implementing Agency notifies a state that a state fund or other state assurance
is acceptable, the state shall provide to each owner or operator for which it
is assuming financial responsibility a letter or certificate describing the
nature of the state's assumption of responsibility. The letter or certificate
from the state shall include, or have attached to it, the following
information: the facility's name and address and the amount of funds for
corrective action and/or for compensating third parties that is assured by the
state. The owner or operator shall maintain this letter or certificate on file
as proof of financial responsibility in accordance with subdivision
22a-449(d)
-109 (r) (2) (E) of these regulations.
(m)
Trust fund.
(1) An owner or operator may satisfy the
requirements of subsection
22a-449(d)
-109 (d) of these regulations by establishing a trust fund that conforms to the
requirements of this section. The trustee shall be an entity that has the
authority to act as a trustee and whose trust operations are regulated and
examined by a federal agency or an agency of the state in which the fund is
established.
(2) The wording of the
trust agreement shall be identical to the wording specified in subdivision
22a-449(d)
-109 (n) (2) (A) of these regulations, and shall be accompanied by a formal
certification of acknowledgement as specified in subdivision
22a-449(d)
-109 (n) (2) (B) of these regulations.
(3) The trust fund, when established, shall
be funded for the full required amount of coverage, or funded for part of the
required amount of coverage and used in combination with other mechanism(s)
that provide the remaining required coverage.
(4) If the value of the trust fund is greater
than the required amount of coverage, the owner or operator may submit a
written request to the Director of the implementing agency for release of the
excess.
(5) If other financial
assurance as specified in section
22a-449(d)
-109 is substituted for all or part of the trust fund, the owner or operator
may submit a written request to the Director of the implementing agency for
release of the excess.
(6) Within
60 days after receiving a request from the owner or operator for release of
funds as specified in subdivisions
22a-449(d)
-109 (m) (4) or (5) of these regulations, the Director of the implementing
agency shall instruct the trustee to release to the owner or operator such
funds as the Director specifies in writing.
(n)
Standby trust fund.
(1) An owner or operator using any one of the
mechanisms authorized by subsections
22a-449(d)
-109 (g), (i) or (j) of these regulations shall establish a standby trust fund
when the mechanism is acquired. The trustee of the standby trust fund shall be
an entity that has the authority to act as a trustee and whose trust operations
are regulated and examined by a Federal agency or an agency of the state in
which the fund is established.
(2)
(A) The standby trust agreement, or trust
agreement, shall be worded as follows, except that instructions in brackets are
to be replaced with the relevant information and the brackets deleted:
TRUST AGREEMENT
Trust agreement, the "Agreement," entered into as of [date] by
and between [name of the owner or operator], a [name of state] [insert
"corporation," "partnership," "association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert "Incorporated in the state
of " or "a national bank"], the "Trustee."
Whereas, the 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
an underground storage tank shall provide assurance that funds shall be
available when needed for corrective action and third-party compensation for
bodily injury and property damage caused by sudden and nonsudden accidental
releases arising from the operation of the underground storage tank. The
attached Schedule A lists the number of tanks at each facility and the name(s)
and address(es) of the facility(ies) where the tanks are located that are
covered by the standpoint trust agreement.
[Whereas, the Grantor has elected to establish [insert either
"a guarantee," "surety bond," or "letter of credit"] to provide all or part of
such financial assurance for the underground storage tanks identified herein
and is required to establish a standby trust fund able to accept payments from
the instrument (This paragraph is only applicable to the standby trust
agreement.)];
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee;
Now, therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions
As used in this Agreement:
(a) The term "Grantor" means the owner or
operator who enters into this Agreement and any successors or assigns of the
Grantor.
(b) The term "Trustee"
means the Trustee who enters into this Agreement and any successor Trustee.
Section 2. Identification of the Financial Assurance
Mechanism
This Agreement pertains to the [identify the financial
assurance mechanism, either a guarantee, surety bond, or letter of credit, from
which the standby trust fund is established to receive payments (This paragraph
is only applicable to the standby trust agreement.)].
Section 3. Establishment of Fund
The Grantor and the Trustee hereby establish a trust fund, the
"Fund," for the benefit of [implementing agency]. 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 a standby to receive payments and shall
not consist of any property.] Payments made by the provider of financial
assurance pursuant to [the Director of the implementing agency's] instruction
are transferred to the Trustee and are 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 as provider of financial assurance, any payments necessary to discharge
any liability of the Grantor established by [the state implementing
agency]
Section 4. Payment for ["Corrective Action" and/or
"Third-Party Liability Claims"]
The Trustee shall make payments from the Fund as [the Director
of the implementing agency] shall direct, in writing, to provide for the
payment of the costs of [insert: "taking corrective action" and/or compensating
third parties for bodily injury and property damage caused by either "sudden
accidental releases" or "nonsudden accidental releases" or "accidental
releases"] arising from operating the tanks covered by the financial assurance
mechanism identified in this Agreement.
The Fund may not be drawn upon to cover any of the
following:
(a) Any obligation of
[insert owner or operator] under a workers' compensation, disability benefits,
or unemployment compensation law or other similar law;
(b) Bodily injury to an employee of [insert
owner or operator] arising from, and in the course of employment by [insert
owner or operator];
(c) Bodily
injury or property damage arising from the ownership, maintenance, use, or
entrustment to others of any aircraft, motor vehicle, or watercraft;
(d) Property damage to any property owned,
rented, loaned to, in the care, custody, or control of, or occupied by [insert
owner or operator] that is not the direct result of a release from a petroleum
underground storage tank;
(e)
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 other than a contract or agreement entered into to meet the
requirements of subsection
22a-449(d)
-109 (d) of these regulations.
The Trustee shall reimburse the Grantor, or other persons as
specified by [the Director], from the Fund for corrective action expenditures
and/or third-party liability claims in such amounts as [the Director] 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
and 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 beneficiaries 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 tanks, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended,
15 U.S.C.
80a-2(a), shall not be
acquired or held, unless they are securities or other obligations of the
federal or a state government;
(ii)
The Trustee is authorized to invest the Fund in time or demand deposits of the
Trustee, to the extent insured by an agency of the federal or state government;
and
(iii) The Trustee is authorized
to hold cash awaiting investment or distribution uninvested for a reasonable
time and without liability for the payment of interest thereon.
Section 7. Commingling and Investment
The Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common, commingled, or collective trust fund
created by the Trustee in which the Fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company Act of 1940,
15 U.S.C.
80a-1 et seq., including one which may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section 8. Express Powers of Trustee
Without in any way limiting the powers and discretions
conferred upon the Trustee by the other provisions of this Agreement or by law,
the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depository with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the federal or state government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses
All taxes of any kind that may be assessed or levied against or
in respect of the Fund and all brokerage commissions incurred by the Fund shall
be paid from the Fund. All other expenses incurred by the Trustee in connection
with the administration of this Trust, including fees 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. Advice of Counsel
The Trustee may from time to time consult with counsel, who may
be counsel to the Grantor, with respect to any questions 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
writing sent to the Grantor 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, and instructions by the Grantor to the
Trustee shall be in writing, signed by such persons as are designated in the
attached Schedule B or such other designees as the Grantor may designate by
amendment to Schedule B. 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 of the implementing
agency] 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 14. Amendment of Agreement
This Agreement may be amended by an instrument in writing
executed by the Grantor and the Trustee, or by the Trustee and [the Director of
the implementing agency] 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 direction of the Grantor and the Trustee, or by
the Trustee and [the Director of the implementing agency], 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 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 or [the
Director of the implementing agency] issued in accordance with this Agreement.
The Trustee shall be indemnified and saved harmless by the Grantor, 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 [insert name of state], or the
Comptroller of the Currency in the case of National Association banks.
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 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
(if applicable) 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 subdivision
22a-449(d)
-109 (n) (2) of these regulations as such regulations were constituted on the
date written above.
[Signature of Grantor]
[Name of the Grantor]
[Title]
Attest:
[Signature of Trustee]
[Name of the Trustee]
[Title]
[Seal]
[Signature of Witness]
[Name of the Witness]
[Title]
[Seal]
(B) The standby trust
agreement, or trust agreement shall be accompanied by a formal certification of
acknowledgement similar to the following. State requirements may differ on the
proper content of this acknowledgment.
State
of_____________________________________________________________
County
of___________________________________________________________
On this [date], before me personally came [owner or operator]
to me known, who, being by me duly sworn, did depose and say that she/he
resides at [address], that she/he is [title] of [corporation], the corporation
described in and which executed the above instrument; that she/he knows the
seal of said corporation; that the seal affixed to such instrument is such
corporate seal; that it was so affixed by order of the Board of Directors of
said corporation; and that she/he signed her/his name thereto by like
order.
[Signature of Notary Public]
[Name of Notary Public]
(3) The Director of the implementing agency
shall instruct the trustee to refund the balance of the standby trust fund to
the provider of financial assurance if the Director determines that no
additional corrective action costs or third-party liability claims shall occur
as a result of a release covered by the financial assurance mechanism for which
the standby trust fund was established.
(4) An owner or operator may establish one
trust fund as the depository mechanism for all funds assured in compliance with
this rule.
(o)
Substitution of financial assurance mechanisms by owner or
operator.
(1) An owner or operator may
substitute any alternate financial assurance mechanisms as specified in section
22a-449(d)
-109 of these regulations, provided that at all times he maintains an effective
financial assurance mechanism or combination of mechanisms that satisfies the
requirements of subsection
22a-449(d)
-109 (d) of these regulations.
(2)
After obtaining alternate financial assurance as specified in section
22a-449(d)
-109 of these regulations, an owner or operator may cancel a financial
assurance mechanism by providing notice to the provider of financial
assurance.
(p)
Cancellation or nonrenewal by a provider of financial assurance.
(1) Except as otherwise provided, a provider
of financial assurance may cancel or fail to renew an assurance mechanism by
sending a notice of termination by certified mail to the owner or operator.
(A) Termination of a guarantee, a surety
bond, or a letter of credit may not occur until 120 days after the date on
which the owner or operator receives the notice of termination, as evidenced by
the return receipt.
(B) Termination
of insurance or risk retention group coverage, except for nonpayment or
misrepresentation by the insured, or state-funded assurance may not occur until
60 days after the date on which the owner or operator receives the notice of
termination, as evidenced by the return receipt. Termination for non-payment of
premium or misrepresentation by the insured may not occur until a minimum of 10
days after the date on which the owner or operator receives the notice of
termination, as evidenced by the return receipt.
(2) If a provider of financial responsibility
cancels or fails to renew for reasons other than incapacity of the provider as
specified in subsection
22a-449(d)
-109 (q) of these regulations, the owner or operator shall obtain alternate
coverage as specified in this section within 60 days after receipt of the
notice of termination. If the owner or operator fails to obtain alternate
coverage within 60 days after receipt of the notice of termination, the owner
or operator shall notify the Director of the implementing agency of such
failure and submit:
(A) The name and address
of the provider of financial assurance;
(B) The effective date of termination;
and
(C) The evidence of the
financial assistance mechanism subject to the termination maintained in
accordance with subdivision
22a-449(d)
-109 (r) (2) of these regulations.
(q)
Reporting by owner or
operator.
(1) An owner or operator
shall submit the appropriate forms listed in subdivision
22a-449(d)
-109 (r) (2) of these regulations documenting current evidence of financial
responsibility to the Director of the implementing agency:
(A) Within 30 days after the owner or
operator identifies a release from an underground storage tank required to be
reported under subsections
22a-449(d)
-105 (d) or 106 (c) of these regulations;
(B) If the owner or operator fails to obtain
alternate coverage as required by this section, within 30 days after the owner
or operator receives notice of:
(i)
Commencement of a voluntary or involuntary proceeding under Title 11
(Bankruptcy), U.S. Code, naming a provider of financial assurance as a
debtor,
(ii) Suspension or
revocation of the authority of a provider of financial assurance to issue a
financial assurance mechanism,
(iii) Failure of a guarantor to meet the
requirements of the financial test,
(iv) Other incapacity of a provider of
financial assurance; or
(C) As required by subdivisions
22a-449(d)
-109 (f) (7) and (p) (2) of these regulations.
(2) An owner or operator shall certify
compliance with the financial responsibility requirements of sections
22a-449(d)
-101 to 113, inclusive, of these regulations as specified in the new tank
notification form when notifying the appropriate state or local agency of the
installation of a new underground storage tank under subsection
22a-449(d)
-102 (b) of these regulations.
(3)
The Director of the Implementing Agency may require an owner or operator to
submit evidence of financial assurance as described in subdivision
22a-449(d)
-109 (r) (2) of these regulations or other information relevant to compliance
with this section at any time.
(r)
Recordkeeping.
(1) Owners or operators shall maintain
evidence of all financial assurance mechanisms used to demonstrate financial
responsibility under this section for an underground storage tank until
released from the requirements of section
22a-449(d)
-109 of these regulations under subsection
22a-449(d)
-109 (t) of these regulations. An owner or operator shall maintain such
evidence at the underground storage tank site or the owner's or operator's
place of business. Records maintained off-site shall be made available upon
request of the implementing agency.
(2) An owner or operator shall maintain the
following types of evidence of financial responsibility:
(A) An owner or operator using an assurance
mechanism specified in subsections
22a-449(d)
-109 (f) to (k), inclusive, or subsection
22a-449(d)
-109 (m) of these regulations shall maintain a copy of the instrument worded as
specified.
(B) An owner or operator
using a financial test or guarantee shall maintain a copy of the chief
financial officer's letter based on year-end financial statements for the most
recent completed financial reporting year. Such evidence shall be on file no
later than 120 days after the close of the financial reporting year.
(C) An owner or operator using a guarantee,
surety bond, or letter of credit shall maintain a copy of the signed standby
trust fund agreement and copies of any amendments to the agreement.
(D) An owner or operator using an insurance
policy or risk retention group coverage shall maintain a copy of the signed
insurance policy or risk retention group coverage policy, with the endorsement
or certificate of insurance and any amendments to the agreements.
(E) An owner or operator covered by a state
fund or other state assurance shall maintain on file a copy of any evidence of
coverage supplied by or required by the State under subdivision
22a-449(d)
-109 (l) (4) of these regulations.
(F) An owner or operator using an assurance
mechanism specified in subsections
22a-449(d)
-109 (f) to (m), inclusive, of these regulations shall maintain an updated copy
of a certification of financial responsibility worded as follows, except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
CERTIFICATION OF FINANCIAL RESPONSIBILITY
[Owner or operator] hereby certifies that it is in compliance
with the requirements of section
22a-449(d)
-109 of these regulations.
The financial assurance mechanism[s] used to demonstrate
financial responsibility under section
22a-449(d)
-109 of these regulations is [are] as follows:
[For each mechanism, list the type of mechanism, name of
issuer, mechanism number (if applicable), amount of coverage, effective period
of coverage and whether the mechanism covers "taking corrective action" and/or
"compensating third parties for bodily injury and property damage caused by"
either "sudden accidental releases" or "nonsudden accidental releases" or
"accidental releases."]
[Signature of owner or operator]
[Name of owner or operator]
[Title]
[Date]
[Signature of witness or notary]
[Name of witness or notary]
[Date]
The owner or operator shall update this certification whenever
the financial assurance mechanism(s) used to demonstrate financial
responsibility change(s).
(s)
Drawing on financial assurance
mechanisms.
(1) The Director of the
implementing agency shall require the guarantor, surety, or institution issuing
a letter of credit to place the amount of funds stipulated by the Director, up
to the limit of funds provided by the financial assurance mechanism, into the
standby trust if:
(A)
(i) The owner or operator fails to establish
alternate financial assurance within 60 days after receiving notice of
cancellation of the guarantee, surety bond, letter of credit, or, as
applicable, other financial assurance mechanism; and
(ii) The Director determines or suspects that
a release from an underground storage tank covered by the mechanism has
occurred and so notifies the owner or operator or the owner or operator has
notified the Director pursuant to sections
22a-449(d)
-105 or 106 of these regulations of a release from an underground storage tank
covered by the mechanism; or
(B) The conditions of subdivisions
22a-449(d)
-109 (s) (2) (A) or (2) (B) (i) or (2) (B) (ii) of these regulations are
satisfied.
(2) The
Director of the implementing agency may draw on a standby trust fund when:
(A) The Director makes a final determination
that a release has occurred and immediate or long-term corrective action for
the release is needed, and the owner or operator, after appropriate notice and
opportunity to comply, has not conducted corrective action as required under
section
22a-449(d)
-106 of these regulations; or
(B)
The Director has received either:
(i)
Certification from the owner or operator and the third-party liability
claimant(s) and from attorneys representing the owner or operator and the
third-party liability claimant(s) that a third-party liability claim should be
paid. The certification shall 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 principals and as legal representatives of
[insert owner or operator] and [insert name and address of third-party
claimant], hereby certify that the claim of bodily injury [and/or] property
damage caused by an accidental release arising from operating [owner's or
operator's] underground storage tank should be paid in the amount of $[ _______
].
[Signatures] |
Owner or Operator |
Attorney for Owner or Operator |
(Notary) |
Date |
[Signature(s)] |
Claimant(s) |
Attorney(s) for Claimant(s) |
(Notary) |
Date |
or |
(ii) A
valid final court order establishing a judgment against the owner or operator
for bodily injury or property damage caused by an accidental release from an
underground storage tank covered by financial assurance under section
22a-449(d)
-109 of these regulations and the Director determines that the owner or
operator has not satisfied the judgment.
(3) If the Director of the implementing
agency determines that the amount of corrective action costs and third-party
liability claims eligible for payment subdivision
22a-449(d)
-109 (s) (2) of these regulations may exceed the balance of the standby trust
fund and the obligation of the provider of financial assurance, the first
priority for payment shall be corrective action costs necessary to protect
human health and the environment. The Director shall pay third-party liability
claims in the order in which the Director receives certifications under
subdivision
22a-449(d)
-109 (s) (2) (B) (i) of these regulations, and valid court orders under
subdivision
22a-449(d)
-109 (s) (2) (B) (ii) of these regulations.
(t)
Release from the
requirements.
An owner or operator is no longer required to maintain
financial responsibility under this section for an underground storage tank
after the tank has been properly closed or, if corrective action is required,
after corrective action has been completed and the tank has been properly
closed as required by section
22a-449(d)
-107 of these regulations.
(u)
Bankruptcy or other incapacity of
owner or operator or provider of financial assurance.
(1) Within 10 days after commencement of a
voluntary or involuntary proceeding under Title 11 (Bankruptcy), U.S. Code,
naming an owner or operator as debtor, the owner or operator shall notify the
Director of the implementing agency by certified mail of such commencement and
submit the appropriate forms listed in subdivision
22a-449(d)
-109 (r) (2) of these regulations documenting current financial
responsibility.
(2) Within 10 days
after commencement of a voluntary or involuntary proceeding under Title 11
(Bankruptcy), U.S. Code, naming a guarantor providing financial assurance as
debtor, such guarantor shall notify the owner or operator by certified mail of
such commencement as required under the terms of the guarantee specified in
subsection
22a-449(d)
-109 (g) of these regulations.
(3)
An owner or operator who obtains financial assurance by a mechanism other than
the financial test of self-insurance shall be deemed to be without the required
financial assurance in the event of a bankruptcy or incapacity of its provider
of financial assurance, or a suspension or revocation of the authority of the
provider of financial assurance to issue a guarantee, insurance policy, risk
retention group coverage policy, surety bond, letter of credit, or
state-required mechanism. The owner or operator shall obtain alternate
financial assurance as specified in section
22a-449(d)
-109 of these regulations within 30 days after receiving notice of such an
event. If the owner or operator does not obtain alternate coverage within 30
days after such notification, he shall notify the Director of the implementing
agency.
(4) Within 30 days after
receipt of notification that a state fund or other state assurance has become
incapable of paying for assured corrective action or third-party compensation
costs, the owner or operator shall obtain alternate financial
assurance.
(v)
Replenishment of guarantees, letters of credit, or surety bonds.
(1) If at any time after a standby trust is
funded upon the instruction of the Director of the implementing agency with
funds drawn from a guarantee, letter of credit, or surety bond, and the amount
in the standby trust is reduced below the full amount of coverage required, the
owner or operator shall by the anniversary date of the financial mechanism from
which the funds were drawn:
(A) Replenish the
value of financial assurance to equal the full amount of coverage required,
or
(B) Acquire another financial
assurance mechanism for the amount by which funds in the standby trust have
been reduced.
(2) For
purposes of subsection
22a-449(d)
-109 (v) hese regulations, the full amount of coverage required is the amount
of coverage to be provided by subsection
22a-449(d)
-109 (d) of these regulations. If a combination of mechanisms was used to
provide the assurance funds which were drawn upon, replenishment shall occur by
the earliest anniversary date among the mechanisms.
(w)
Suspension of enforcement.
[Reserved]
(x)
40 CFR Part
280. Appendix I is incorporated by reference in its entirety.
(y)
Appendix II to Part 40 CFR 280
-List of Agencies Designated To Receive Notifications
Connecticut (State Form), Hazardous Materials Management Unit,
Department of Environmental Protection, State Office Building, 79 Elm Street,
Hartford, Connecticut 06106
(z)
Appendix III to 40 CFR Part
280-Statement for Shipping Tickets and Invoices
A Federal law, the Resource Conservation and Recovery Act
(RCRA), as amended ( Pub. L. 98-616 ), requires owners of certain underground
storage tanks to notify designated State or local agencies by May 8, 1986, of
the existence of their tanks. Notifications for tanks brought into use after
May 8, 1986, shall be made within 30 days. Consult EPA's regulations, issued on
November 8, 1985 (40 CFR part 280) to determine if you are affected by this
law.