Current through Register Vol. 48, No. 9, September 27, 2024
(a)
(1) A trust agreement for a trust fund, as
specified in sections 264.143(a) or 264.145(a) or 265.143(a) or 265.145(a),
must be worded as noted in section 264.151 Appendix A(1) except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted.
(2)
Certification of acknowledgment which must accompany the trust agreement for a
trust fund as specified in 264.143(a) and 264.145(a) or 265.143(a) and
265.145(a). This document must be worded as noted in 264.151 Appendix A(2)
except that instructions in brackets are to be replaced with the relevant
information and the brackets deleted.
(b) A surety bond guaranteeing payment into a
trust fund, as specified in 264.143(b) or 264.145(b) or 265.143(b) or
265.145(b) must be worded as noted in 264.151 Appendix B follows, except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted. (amended 11/90)
(c) A surety bond guaranteeing performance of
closure and/or postclosure care, as specified in 264.143(c) or 264.145(c), must
be worded as noted in 264.151 Appendix C, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted.
(amended 11/90)
(d) A letter of
credit, as specified in 264.143(d) or 264.145(d) or 265.143(c) or 265.145(c)
must be worded as noted in 264.151 Appendix D, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted. (amended 11/90)
(e) A
certificate of insurance, as specified in 264.143(e) or 264.145(e) or
265.143(d) or 265.145(d) must be worded as noted in 264.151 Appendix E, except
that instructions in brackets are to be replaced with the relevant information
and the brackets deleted. (amended 11/90)
(f) A letter from the chief financial
officer, as specified in 264.143(f) or 264.145(f) or 265.143(e) or 265.145(e)
must be worded as noted in 264.151 Appendix F, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted.
(g) A letter from the
chief financial officer, as specified in 264.147(f) or 265.147(f), must be
worded as noted in 264.151 Appendix G, except that instructions in brackets are
to be replaced with the relevant information and the brackets deleted. (revised
12/93)
(h)
(1) A corporate guarantee, as specified in
264.143(f) or 264.145(f) or 265.143(e) or 265.145(e) must be worded as
indicated in Appendix H 1, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted.
(2) A guarantee, as specified in 264.147(g)
or 265.147(g) must be worded as noted in Appendix H 2, except that instructions
in brackets are to be replaced with the relevant information and the brackets
deleted.
(i) A hazardous
waste facility liability endorsement as required in 264.147 or 265.147 must be
worded as noted in Appendix I, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted.
(j) A certificate of liability insurance as
required in 264.147 or 265.147 must be worded as noted in Appendix J, except
that instructions in brackets are to be replaced with the relevant information
and the brackets deleted.
(k) A
letter of credit, as specified in section 264.147(h) or 265.147(h), must be
worded as noted in section 264.151 Appendix K, except that instructions in
brackets are to be replaced with the relevant information and the brackets
deleted.
(l) A surety bond, as
specified in section 264.147(i) or 265.147(i) of this chapter, must be worded
as noted in section 264.151 Appendix L, except that instructions in brackets
are to be replaced with the relevant information and the brackets
deleted.
(m)
(1) A trust agreement, as specified in
264.147(j) or 265.147(j) of this chapter, must be worded as noted in 264.151
Appendix M(1), except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted.
(2) 264.151 Appendix M(2) contains an example
of the certification of acknowledgment which must accompany the trust agreement
for a trust fund as specified in 264.147(j) or 265.147(j) of this
chapter.
(n)
(1) A standby trust agreement, as specified
in 264.147(h) or 265.147(h) of this chapter, must be worded as noted in 264.151
Appendix N(1), except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted.
(2) 264.151 Appendix N(2) contains an example
of the certification of acknowledgment which must accompany the trust agreement
for a standby trust fund as specified in section264.147(h)(h) or 265.147(h) of
this chapter.
264.151.
APPENDIX A-1. (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
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 South Carolina Department of Health and
Environmental Control, hereafter referred to as the "Department", an agency of
the state of South Carolina, has established certain regulations applicable to
the Grantor, requiring that an owner or operator of a hazardous waste
management facility shall provide assurance that funds will be available when
needed for closure and/or post-closure care of the facility,
WHEREAS, the Grantor has elected to establish a trust to
provide all or part of such financial assurance for the facilities identified
herein,
WHEREAS, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee,
NOW, THEREFORE, the Grantor and the Trustee agree as
follows:
Section1. 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.
Section2. Identification of Facilities and
Cost Estimates. This Agreement pertains to the facilities and cost estimates
identified on attached Schedule A [on Schedule A, for each facility list the
EPA Identification Number, name, address, and the current closure and/or
post-closure cost estimates, or portions thereof, for which financial assurance
is demonstrated by this Agreement].
Section3. Establishment of Fund. The Grantor
and the Trustee hereby establish a trust fund, the "Fund," for the benefit of
the Department. The Grantor and the Trustee intend that no third party have
access to the Fund except as herein provided. The Fund is established initially
as consisting of the property, which is acceptable to the Trustee, described in
Schedule B attached hereto. Such property and any other property subsequently
transferred to the Trustee is referred to as the Fund, together with all
earnings and profits thereon, less any payments or distributions made by the
Trustee pursuant to this Agreement. The Fund shall be held by the Trustee, IN
TRUST, as hereinafter provided. The Trustee shall not be responsible nor shall
it undertake any responsibility for the amount or adequacy of, nor any duty to
collect from the Grantor, any payments necessary to discharge any liabilities
of the Grantor established by the Department.
Section4. Payment for Closure and
Post-Closure Care. The Trustee shall make payments from the Fund as the
Department shall direct, in writing, to provide for the payment of the costs of
closure and/or post-closure care of the facilities covered by this Agreement.
The Trustee shall reimburse the Grantor or other persons as specified by the
Department from the Fund for closure and post-closure expenditures in such
amounts as the Department shall direct in writing. In addition, the Trustee
shall refund to the Grantor such amounts as the Department specifies in
writing. Upon refund, such funds shall no longer constitute part of the Fund as
defined herein.
Section5. Payments
Comprising the Fund. Payments made to the Trustee for the Fund shall consist of
cash or securities acceptable to the Trustee.
Section6. Trustee Management. The Trustee
shall invest and reinvest the principal and income of the Fund and keep the
Fund invested as a single fund, without distinction between principal and
income, in accordance with general investment policies and guidelines which the
Grantor may communicate in writing to the Trustee from time to time, subject,
however, to the provisions of this section. In investing, reinvesting,
exchanging, selling, and managing the Fund, the Trustee shall discharge his
duties with respect to the trust fund solely in the interest of the beneficiary
and with the care, skill, prudence, and diligence under the circumstances then
prevailing which persons of prudence, acting in a like capacity and familiar
with such matters, would use in the conduct of an enterprise of a like
character and with like aims; except that:
(i)
Securities or other obligations of the Grantor, or any other owner or operator
of the facilities, or any of their affiliates as defined in the Investment
Company Act of 1940, as amended, 15 U.S.C. 80a -
2.(a),
shall not be acquired or held, unless they are securities or other obligations
of the Federal or a State government;
(ii) The Trustee is authorized to invest the
Fund in time or demand deposits of the Trustee, to the extent insured by an
agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section7. 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.
Section8. 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.
Section9. 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.
Section10. Annual
Valuation. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the Department a statement confirming the value of the Trust. Any securities in
the Fund shall be valued at market value as of no more than 60 days prior to
the anniversary date of establishment of the Fund. The failure of the Grantor
to object in writing to the Trustee within 90 days after the statement has been
furnished to the Grantor and the Department shall constitute a conclusively
binding assent by the Grantor, barring the Grantor from asserting any claim or
liability against the Trustee with respect to matters disclosed in the
statement.
Section11. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section12.
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.
Section13. Successor
Trustee. The Trustee may resign or the Grantor may replace the Trustee, but
such resignation or replacement shall not be effective until the Grantor has
appointed a successor trustee and this successor accepts the appointment. The
successor trustee shall have the same powers and duties as those conferred upon
the Trustee hereunder. Upon the successor trustee's acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in a
writing sent to the Grantor, the Department, and the present Trustee by
certified mail 10 days before such change becomes effective. Any expenses
incurred by the Trustee as a result of any of the acts contemplated by this
Section shall be paid as provided in Section9.
Section14. Instructions to the Trustee. All
orders, requests, and instructions by the Grantor to the Trustee shall be in
writing, signed by such persons as are designated in the attached Exhibit A or
such other designees as the Grantor may designate by amendment to Exhibit A.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. All orders, requests,
and instructions by the Department to the Trustee shall be in writing, signed
by the Department, and the Trustee shall act and shall be fully protected in
acting in accordance with such orders, requests, and instructions. The Trustee
shall have the right to assume, in the absence of written notice to the
contrary, that no event constituting a change or a termination of the authority
of any person to act on behalf of the Grantor or the Department hereunder has
occurred. The Trustee shall have no duty to act in the absence of such orders,
requests, and instructions from the Grantor and/or the Department, except as
provided for herein.
Section15.
Notice of Nonpayment. The Trustee shall notify the Grantor and the Department,
by certified mail within 10 days following the expiration of the 30-day period
after the anniversary of the establishment of the Trust, if no payment is
received from the Grantor during that period. After the pay-in period is
completed, the Trustee shall not be required to send a notice of
nonpayment.
Section16. Amendment of
Agreement. This Agreement may be amended by an instrument in writing executed
by the Grantor, the Trustee, and the Department, or by the Trustee and the
Department if the Grantor ceases to exist.
Section17. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section16, this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the Department, or by
the Trustee and the Department, if the Grantor ceases to exist. Upon
termination of the Trust, all remaining trust property, less final trust
administration expenses, shall be delivered to the Grantor.
Section18. Immunity and Indemnification. The
Trustee shall not incur personal liability of any nature in connection with any
act or omission, made in good faith, in the administration of this Trust, or in
carrying out any directions by the Grantor or the Department issued in
accordance with this Agreement. The Trustee shall be indemnified and saved
harmless by the Grantor or from the Trust Fund, or both, from and against any
personal liability to which the Trustee may be subjected by reason of any act
or conduct in its official capacity, including all expenses reasonably incurred
in its defense in the event the Grantor fails to provide such
defense.
Section19. Choice of Law.
This Agreement shall be administered, construed, and enforced according to the
laws of the State of South Carolina.
Section20. Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each Section of this
Agreement shall not affect the interpretation or the legal efficacy of this
Agreement.
IN WITNESS WHEREOF the parties have caused this Agreement
to be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written:
The parties below certify that the wording of this Agreement is identical to
the wording specified in R.61-79.264.151(a)(1)(a)(1)as such regulations were
constituted on the date first above written.
_______________________________________
[Signature of Grantor]
[Title]
Attest: ______________________________
[Title]
[Seal]
_______________________________________
[Signature of Trustee]
Attest: ______________________________
[Title]
[Seal]
264.151. APPENDIX A-(2). (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Certificate of Acknowledgement (must accompany the trust
agreement):
State of South Carolina
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 his/her name thereto by like order.
(Signature of Notary Public) __________
264.151. APPENDIX B. (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Surety Bond: Guaranteeing Payment Into a Trust Fund for
Closure and/or Postclosure Care
Financial Guarantee Bond
Date bond executed: __________
Effective date: __________
Principal: __________ [Legal name and business address of
owner or operator]
Type of organization: __________ [insert "individual",
"joint venture", "partnership", or "corporation"]
State of incorporation: __________
Surety(ies): __________ [name(s) and business address(es)
]
__________
EPA Identification Number, name, address and closure and/or
postclosure amount(s) for each facility guaranteed by this bond [indicate
closure and postclosure amounts separately]: __________
Total penal sum of bond: $__________
Surety's bond number: __________
Know All Persons By These Presents, That we, the Principal
and Surety(ies) hereto are firmly bound to the South Carolina Department of
Health and Environmental Control (hereinafter called the "Department"), in the
above penal sum for the payment of which we bind ourselves, our heirs,
executors, administrators, successors, and assigns jointly and severally;
provided that, where the Surety(ies) are corporations acting as co-sureties,
we, the Sureties, bind ourselves in such sum "jointly and severally" only for
the purpose of allowing a joint action or actions against any or all of us, and
for all other purposes each Surety binds itself, jointly and severally with the
Principal, for the payment of such sum only as is set forth opposite the name
of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas said Principal is required, under South Carolina
Hazardous Waste Management Regulation to have a permit or interim status in
order to own or operate each hazardous waste management facility identified
above, and
Whereas said Principal is required to provide financial
assurance for closure, or closure and postclosure care, as a condition of the
permit or interim status, and
Whereas said Principal shall establish a standby trust fund
as is required when a surety bond is used to provide such financial
assurance;
Now, Therefore, the conditions of the obligation are such
that if the Principal shall faithfully, before the beginning of final closure
of each facility identified above, fund the standby trust fund in the amount(s)
identified above for the facility,
Or, if the Principal shall fund the standby trust fund in
such amount(s) within 15 days after a final order to begin closure is issued by
the Department or an EPA Regional Administrator or a U.S. district court or
other court of competent jurisdiction,
Or, if the Principal shall provide alternate financial
assurance, as specified in Subpart H of R.61-79.264 or R.61-79.265, as
applicable, and obtain the Department's written approval of such assurance,
within 90 days after the date notice of cancellation is received by both the
Principal and the Department from the Surety(ies), then this obligation shall
be null and void; otherwise it is to remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation
only when the Principal has failed to fulfill the conditions described above.
Upon notification by the Department that the Principal has failed to perform as
guaranteed by this bond, the Surety(ies) shall place funds in the amount
guaranteed for the facility(ies) into the standby trust fund as directed by the
Department.
Upon notification by the Department that the Principal has
been found in violation of the postclosure requirements of R.61-79.264 for a
facility for which this bond guarantees performance of postclosure care, the
Surety(ies) shall either perform postclosure care in accordance with the
postclosure plan and other permit requirements or place the postclosure amount
guaranteed for the facility into the standby trust fund as directed by the
Department.
Upon notification by the Department that the Principal has
failed to provide alternate financial assurance as specified in Subpart H of
R.61-79.264 and obtain written approval of such assurance from the Department
during the 90 days following receipt by both the Principal and the Department
of a notice of cancellation of the bond, the Surety(ies) shall place funds in
the amount guaranteed for the facility(ies) into the standby trust fund as
directed by the Department.
The surety(ies) hereby waive(s) notification of amendments
to closure plans, permits, applicable laws, statutes, rules, and regulations
and agrees that no such amendment shall in any way alleviate its (their)
obligation on this bond.
The liability of the Surety(ies) shall not be discharged by
any payment or succession of payments hereunder, unless and until such payment
or payments shall amount in the aggregate to the penal sum of the bond, but in
no event shall the obligation of the Surety(ies) hereunder exceed the amount of
said penal sum.
The Surety(ies) may cancel the bond by sending notice of
cancellation by certified mail to the Principal and to the Department,
provided, however, that cancellation shall not occur during the 120 days
beginning on the date of receipt of the notice of cancellation by both the
Principal and the Department, as evidenced by the return receipts.
The Principal may terminate this bond by sending written
notice to the Surety(ies), provided, however, that no such notice shall become
effective until the Surety(ies) receive(s) written authorization for
termination of the bond by the Department.
[The following paragraph is an optional rider that may be
included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal
sum of the bond yearly so that it guarantees a new closure and/or postclosure
amount, provided that the penal sum does not increase by more than 20 percent
in any one year, and no decrease in the penal sum takes place without the
written permission of the Department.
In Witness Whereof, the Principal and Surety(ies) have
executed this Financial Guarantee Bond and have affixed their seals on the date
set forth above.
The persons whose signatures appear below hereby certify
that they are authorized to execute this surety bond on behalf of the Principal
and Surety(ies) and that the wording of this surety bond is identical to the
wording specified in R.61-79.264 Section264.151(b)(b) as such regulations were
constituted on the date this bond was executed.
Principal
[Signature(s) ] __________
[Name(s) ] __________
[Title(s) ] __________
[Corporate seal] __________
Corporate Surety(ies)
[Name and address] __________
[State of incorporation:] __________
Liability limit: $__________
[Signature(s) ] __________
[Name(s) and title(s) ] __________
[Corporate seal] __________
[For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.]
Bond premium: $__________
264.151. APPENDIX C (12/93; 12/94; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Surety Bond: Guaranteeing Performance of Closure and/or
Postclosure Care
Performance Bond
Date bond executed: __________
Effective date: __________
Principal: __________ [Legal name and business address of
owner or operator]
Type of organization: __________ [insert "individual",
"joint venture", "partnership", or "corporation"]
State of incorporation: __________
Surety(ies): __________
__________ [name(s) and business address(es) ]
EPA Identification Number, name, address, and closure
and/or postclosure amount(s) for each facility guaranteed by this bond
[indicate closure and postclosure amounts separately]:
__________
Total penal sum of bond: $__________
Surety's bond number: __________
Know All Persons By These Presents, That we, the Principal
and Surety(ies) hereto are firmly bound to the South Carolina Department of
Health and Environmental Control hereinafter called the "Department" in the
above penal sum for the payment of which we bind ourselves, our heirs,
executors, administrators, successors, and assigns jointly and severally;
provided that, where the Surety(ies) are corporations acting as co-sureties,
we, the Sureties, bind ourselves in such sum "jointly and severally" only for
the purpose of allowing a joint action or actions against any or all of us, and
for all other purposes each Surety binds itself, jointly and severally with the
Principal, for the payment of such sum only as is set forth opposite the name
of such Surety, but if no limit of liability is indicated, the limit of
liability shall be the full amount of the penal sum.
Whereas said Principal is required, under the S.C.
Hazardous Waste Management Regulations and the Resource Conservation and
Recovery Act as amended (RCRA) to have a permit in order to own or operate each
hazardous waste management facility identified above, and
Whereas said Principal is required to provide financial
assurance for closure, or closure and postclosure care, as a condition of the
permit, and
Whereas said Principal shall establish a standby trust fund
as is required when a surety bond is used to provide such financial
assurance;
Now, Therefore, the conditions of this obligation are such
that if the Principal shall faithfully perform closure, whenever required to do
so, of each facility for which this bond guarantees closure, in accordance with
the closure plan and other requirements of the permit as such plan and permit
may be amended, pursuant to all applicable laws, statutes, rules, and
regulations, as such laws, statutes, rules, and regulations may be
amended,
And, if the Principal shall faithfully perform postclosure
care of each facility for which this bond guarantees postclosure care, in
accordance with the postclosure plan and other requirements of the permit, as
such plan and permit may be amended, pursuant to all applicable laws, statutes,
rules, and regulations, as such laws, statutes, rules, and regulations may be
amended.
Or, if the Principal shall provide alternate financial
assurance as specified in Subpart H of R.61-79.264 and obtain the Department's
written approval of such assurance, within 90 days after the date notice of
cancellation is received by both the Principal and the Department from the
Surety(ies), then this obligation shall be null and void, otherwise it is to
remain in full force and effect.
The Surety(ies) shall become liable on this bond obligation
only when the Principal has failed to fulfill the conditions described
above.
Upon notification by the Department that the Principal has
been found in violation of the closure requirements of R.61-79 part 264, for a
facility for which this bond guarantees performance of closure, the Surety(ies)
shall either perform closure in accordance with the closure plan and other
permit requirements or place the closure amount guaranteed for the facility
into the standby trust fund as directed by the Department.
Upon notification by the Department that the Principal has
been found in violation of the postclosure requirements of R.61-79 part 264 for
a facility for which this bond guarantees performance of postclosure care, the
Surety(ies) shall either perform postclosure care in accordance with the
postclosure plan and other permit requirements or place the postclosure amount
guaranteed for the facility into the standby trust fund as directed by the
Department.
Upon notification by the Department that the Principal has
failed to provide alternate financial assurance as specified in Subpart H of
R.61-79 part 264, and obtain written approval of such assurance from the
Department during the 90 days following receipt by both the Principal and the
Department of a notice of cancellation of the bond, the Surety(ies) shall place
funds in the amount guaranteed for the facility(ies) into the standby trust
fund as directed by the Department.
The Surety(ies) hereby waive(s) notification of amendments
to closure plans, permits, applicable laws, statutes, rules, and regulations
and agrees that no such amendment shall in any way alleviate its (their)
obligation on this bond.
The liability of the Surety(ies) shall not be discharged by
any payment or succession of payments hereunder, unless and until such payment
or payments shall amount in the aggregate to the penal sum of the bond, but in
no event shall the obligation of the Surety(ies) hereunder exceed the amount of
said penal sum.
The Surety(ies) may cancel the bond by sending notice of
cancellation by certified mail to the owner or operator and to the Department
provided, however, that cancellation shall not occur during the 120 days
beginning on the date of receipt of the notice of cancellation by both the
Principal and the Department, as evidenced by the return receipts.
The principal may terminate this bond by sending written
notice to the Surety(ies), provided, however, that no such notice shall become
effective until the Surety(ies) receive(s) written authorization for
termination of the bond by the Department.
[The following paragraph is an optional rider that may be
included but is not required.]
Principal and Surety(ies) hereby agree to adjust the penal
sum of the bond yearly so that it guarantees a new closure and/or postclosure
amount, provided that the penal sum does not increase by more than 20 percent
in any one year, and no decrease in the penal sum takes place without the
written permission of the Department.
In Witness Whereof, The Principal and Surety(ies) have
executed this Performance Bond and have affixed their seals on the date set
forth above.
The persons whose signatures appear below hereby certify
that they are authorized to execute this surety bond on behalf of the Principal
and Surety(ies) and that the wording of this surety bond is identical to the
wording specified in R.61-79.264.151(c)(c)as such regulation was constituted on
the date this bond was executed.
Principal
[Signature(s) ] __________
[Name(s) ] __________
[Title(s) ] __________
[Corporate Seal] __________
Corporate Surety(ies)
[Name and address] __________
State of Incorporation: __________
Liability Limit: __________
[Signature(s) ] __________
[Name(s) and title(s) ] __________
[Corporate seal:] __________
[For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.]
Bond premium: $__________
264.151. APPENDIX D (12/93; 12/94; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Letter of Credit Covering Cost of Closure and/or
Postclosure Care
Irrevocable Standby Letter of Credit
Chief
Bureau of Land and Waste Management
2600 Bull Street
Columbia, SC 29201
Dear Sir or Madam: We hereby establish our Irrevocable
Standby Letter of Credit No. __________ in your favor, at the request and for
the account of __________ [owner's or operator's name and address] up to the
aggregate amount of [in words] __________ U.S. dollars $__________, available
upon presentation of:
(1) your sight
draft, bearing reference to this letter of credit No. __________, and
(2) your signed statement reading as follows:
"I certify that the amount of the draft is payable pursuant to regulations
issued under authority of the South Carolina Department of Health and
Environmental Control."
This letter of credit is effective as of __________ [date]
and shall expire on __________ [date at least 1 year later] but such expiration
date shall be automatically extended for a period of __________ [at least 1
year] on __________ [date] and on each successive expiration date, unless, at
least 120 days before the current expiration date, we notify both you and
__________ [owner's or operator's name] by certified mail that we have decided
not to extend this letter of credit beyond the current expiration date. In the
event you are so notified, any unused portion of the credit shall be available
upon presentation of your sight draft for 120 days after the date of receipt by
both you and __________ [owner's or operator's name], as shown on the signed
return receipts.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor such draft upon
presentation to us, and we shall deposit the amount of the draft directly into
the standby trust fund of __________ [owner's or operator's name] in accordance
with your instructions.
We certify that the wording of this letter of credit is
identical to the wording specified in R.61-79.264.151(d)(d)as such regulations
were constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing
institution] __________
[Date] __________
This credit is subject to [insert "the most recent edition
of the Uniform Customs and Practice for Documentary Credits, published and
copyrighted by the International Chamber of Commerce," or "the Uniform
Commercial Code"].
264.151. APPENDIX E (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Insurance Covering Cost of Closure and/or Postclosure
Care
Certificate of Insurance for Closure or Postclosure
Care
Name and Address of Insurer (herein called the "Insurer"):
__________
Name and Address of Insured (herein called the "Insured"):
__________
Facilities Covered:
[List for each facility:
EPA ID# __________
NAME __________
ADDRESS __________
AMOUNT OF INSURANCE FOR CLOSURE AND/OR THE AMOUNT FOR
POSTCLOSURE CARE __________
(These amounts for all facilities covered must total the
face amount below.)]
Face Amount: __________
Policy Number: __________
Effective Date: __________
The Insurer hereby certifies that it has issued to the
Insured the policy of insurance identified above to provide financial assurance
for __________ [insert "closure" or "closure and postclosure care" or
"postclosure care"] for the facilities identified above. The Insurer further
warrants that such policy conforms in all respects with the requirements of the
Department including R.61-79.264.143(e)(e), 264.145(e), 265.143(d), and
265.145(d), as applicable and as such regulations were constituted on the date
shown immediately below. It is agreed that any provision of the policy
inconsistent with such regulations is hereby amended to eliminate such
inconsistency.
The insurer agrees to furnish to the Department a duplicate
original of the policy listed above, including all endorsements thereon. In
addition, the Insurer shall provide a copy of the insurance policy,
application, and any agreements which may affect the policy.
I hereby certify that the wording of this certificate is
identical to the wording specified in R.61-79.264.151(e)(e)as such regulations
were constituted on the date shown immediately below.
[Authorized signature for Insurer] __________
[Name of person signing] __________
[Title of person signing] __________
Signature of witness or notary: __________
[Date] __________
264.151. APPENDIX F (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Financial Test for Closure and/or Postclosure Care
Letter from Chief Financial Officer
Chief
Bureau of Land and Waste Management
2600 Bull Street
Columbia, SC 29201
Dear Sir: I am the chief financial officer of __________
[name and address of firm]. This letter is in support of this firm's use of the
financial test to demonstrate financial assurance for closure and/or
post-closure costs, as specified in Subpart H of R.61-79 Parts 264 and 265 by
the South Carolina Department of Health and Environmental Control. (amended
6/89)
[Fill out the following four paragraphs regarding
facilities and associated cost estimates. If your firm has no facilities that
belong in a particular paragraph, write "None" in the space indicated. For each
facility, include its EPA Identification Number, name, address, and current
closure and/or postclosure cost estimates. Identify each cost estimate as to
whether it is for closure or postclosure care].
1. This firm is the owner or operator of the
following facilities which are located in the state of South Carolina and for
which financial assurance for closure or postclosure care is demonstrated
through the financial test specified in Subpart H of R.61-79.264 or R.
61-79.265. The current closure and/or postclosure cost estimates covered by the
test are shown for each facility: __________. (amended 6/89)
2. This firm guarantees, through the
guarantee specified in Subpart H of R.61-79.264 or R. 61-79.265, the closure or
postclosure care of the following facilities which are located in the state of
South Carolina and which are owned or operated by the guaranteed party. The
current cost estimates for the closure or postclosure care so guaranteed are
shown for each facility: __________ (amended 6/89) The firm identified above is
__________ [insert one or more: (1) The direct or higher-tier parent
corporation of the owner or operator; (2) owned by the same parent corporation
as the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee __________; or (3) engaged in the
following substantial business relationship with the owner or operator
__________, and receiving the following value in consideration of this
guarantee __________]. [Attach a written description of the business
relationship or a copy of the contract establishing such relationship to this
letter].
3. In states outside of
South Carolina, where the United States Environmental Protection Agency (EPA)
or some designated authority is not administering the financial requirements of
Subpart H of part 264 or 265, this firm, as owner or operator or guarantor, is
demonstrating financial assurance for the closure or postclosure care of the
following facilities through the use of a test equivalent or substantially
equivalent to the financial test specified in R.61-79 Subpart H Parts 264 and
265. The current closure and/or postclosure cost estimates covered by such a
test are shown for each facility: __________. (amended 6/89)
4. This firm is the owner or operator of the
following hazardous waste management facilities for which financial assurance
for closure or, if a disposal facility, postclosure care, is not demonstrated
to the Department through the financial test or any other financial assurance
mechanism specified in Subpart H of R.61-79.264 and R.61-79.265 or equivalent
or substantially equivalent State mechanisms. The current closure and/or
postclosure cost estimates not covered by such financial assurance are shown
for each facility: __________
This firm __________ [insert "is required" or "is not
required"] to file a Form 10K with the Securities and Exchange Commission (SEC)
for the latest fiscal year.
The fiscal year of this firm ends on __________
[month/day]. The figures for the following items marked with an asterisk are
derived from this firm's independently audited, year-end financial statements
for the latest completed fiscal year, ended __________ [date].
[Fill in Alternative I if the criteria of paragraph
(f)(1)(i) of 264.143 or 264.145, or of paragraph (e)(1)(i) of 265.143 or
265.145 are used. Fill in Alternative II if the criteria of paragraph
(f)(1)(ii) of 264.143 or 264.145, or of paragraph (e)(1)(ii) of 265.143 or
265.145 are used.]:
ALTERNATIVE I
|
1.
|
Sum of current closure and postclosure cost
estimates [total of all cost estimates shown in the four paragraphs
above]....
|
$
|
|
* 2.
|
Total liabilities [If any portion of the closure
or postclosure cost estimates is included in total liabilities, you may deduct
the amount of that portion from this line and add that amount to lines 3 and
4]
|
$
|
|
* 3.
|
Tangible net worth
|
$
|
|
* 4
|
Net worth
|
$
|
|
* 5.
|
Current assets
|
$
|
|
* 6.
|
Current liabilities
|
$
|
|
7.
|
Net working capital [line 5 minus line 6]
|
$
|
|
* 8.
|
The sum of net income plus depreciation,
depletion, and amortization
|
$
|
|
* 9
|
Total assets in U.S. (required only if less than
90% of firm's assets are located in the U.S.)
|
$
|
|
Yes
|
No
|
|
10.
|
Is line 3 at least $10 million?
|
|
11.
|
Is line 3 at least 6 times line Is
|
|
12.
|
Is line 7 at least 6 times line Is
|
|
* 13.
|
Are at least 90% of firm's assets located in the
U.S.? If not, complete line 14.
|
|
14.
|
Is line 9 at least 6 times line Is
|
|
15.
|
Is line 2 divided by line 4 less than 2-0?
|
|
16.
|
Is line 8 divided by line 2 greater than
0-Is
|
|
17.
|
Is line 5 divided by line 6 greater than
1-5?
|
ALTERNATIVE II
|
1.
|
Sum of current closure and postclosure cost
estimates [total of all cost estimates shown in the four paragraphs
above]
|
$
|
|
2.
|
Current bond rating of most recent issuance of
this firm and name of rating service
|
_____
|
|
3.
|
Date of issuance of bond
|
_____
|
|
4.
|
Date of maturity of bond
|
_____
|
|
* 5.
|
Tangible net worth [if any portion of the closure
and postclosure cost estimates is included in "total liabilities" on your
firm's financial statements, you may add the amount of that portion to this
line]
|
$
|
|
* 6.
|
Total assets in U.S. (required only if less than
90% of firm's assets are located in the U.S.)
|
$
|
|
Yes
|
No
|
|
7.
|
Is line 5 at least $10 million?
|
|
8.
|
Is line 5 at least 6 times line Is
|
|
9.
|
Are at least 90% of firm's assets located in the
U.S.? If not, complete line 10.
|
|
10.
|
Is line 6 at least 6 times line Is
|
I hereby certify that the wording of this letter is
identical to the wording specified in R.61-79.264.151(f)(f)as such regulations
were (amended 6/89) constituted on the date shown immediately below.
___________________________________
(Signature)
___________________________________
(Name)
___________________________________
(Title)
___________________________________
(Date)
264.151 APPENDIX G (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Financial Test for Liability Coverage
Letter from Chief Financial Officer
Chief
Bureau of Land and Waste Management
2600 Bull Street
Columbia, SC 29201
Dear Sir: I am the chief financial officer of [firm's name
and address]. This letter is in support of the use of the financial test to
demonstrate financial responsibility for liability coverage [insert "and
closure and/or postclosure care" if applicable] as specified in Subpart H of
Parts 264 and 265.
[Fill out the following paragraphs regarding facilities and
liability coverage. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include its
EPA Identification Number, name, and address].
The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert "sudden" or
"nonsudden" or "both sudden and nonsudden"] accidental occurrences is being
demonstrated through the financial test specified in Subpart H of Parts 264 and
265: __________.
The firm identified above guarantees, through the guarantee
specified in Subpart H of Parts 264 and 265, liability coverage for [insert
"sudden" or "nonsudden" or "both sudden and nonsudden"] accidental occurrences
at the following facilities owned or operated by the following: __________. The
firm identified above is [insert one or more: (1) The direct or higher-tier
parent corporation of the owner or operator; (2) owned by the same parent
corporation as the parent corporation of the owner or operator, and receiving
the following value in consideration of this guarantee __________; or (3)
engaged in the following substantial business relationship with the owner or
operator __________, and receiving the following value in consideration of this
guarantee __________.] [Attach a written description of the business
relationship or a copy of the contract establishing such relationship to this
letter.]
[If you are using the financial test to demonstrate
coverage of both liability and closure and postclosure care, fill in the
following four paragraphs regarding facilities and associated closure and
postclosure cost estimates. If there are no facilities that belong in a
particular paragraph, write "None" in the space indicated. For each facility,
include its EPA identification number, name, address, and current closure
and/or postclosure cost estimates. Identify each cost estimate as to whether it
is for closure or postclosure care.]
1. The firm identified above owns or operates
the following facilities for which financial assurance for closure or
postclosure care or liability coverage is demonstrated through the financial
test specified in Subpart H of Parts 264 and 265. The current closure and/or
postclosure cost estimate covered by the test are shown for each facility:
__________.
2. The firm identified
above guarantees, through the guarantee specified in Subpart H of Parts 264 and
265, the closure and postclosure care or liability coverage of the following
facilities owned or operated by the guaranteed party. The current cost
estimates for closure or postclosure care so guaranteed are shown for each
facility: __________.
3. In states
outside of South Carolina, where the United States Environmental Protection
Agency or some designated authority is not administering the financial
responsibility requirements of subpart H of parts 264 and 265, this firm is
demonstrating financial assurance for the closure or postclosure care of the
following facilities through the use of a test equivalent or substantially
equivalent to the financial test specified in R.61-79 Subpart H Parts 264 and
265. The current closure or postclosure estimates covered by such a test or
guarantee are shown for each facility: __________. (amended 6/89)
4. The firm identified above owns or operates
the following hazardous waste management facilities for which financial
assurance for closure or, if a disposal facility, postclosure care, is not
demonstrated to the Department through the financial test or any other
financial assurance mechanisms specified in Subpart H of Parts 264 and 265 or
equivalent or substantially equivalent State mechanisms. The current closure
and/or postclosure cost estimates not covered by such financial assurance are
shown for each facility: __________.
This firm [insert "is required" or "is not required"] to
file a Form 10K with the Securities and Exchange Commission (SEC) for the
latest fiscal year.
The fiscal year of this firm ends on [month, day]. The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended [date].
[Fill in part A if you are using the financial test to
demonstrate coverage only for the liability requirements.]
Part A. Liability Coverage for Accidental
Occurrences
[Fill in Alternative I if the criteria of paragraph
(f)(1)(i) of Section264.147 or Section265.147 are used.
Fill in Alternative II if the criteria of paragraph
(f)(1)(ii) of Section264.147 or Section265.147 are used.]
Alternative I
|
1.
|
Amount of annual aggregate liability coverage to
be
|
$
|
|
demonstrated.
|
|
* 2.
|
Current assets.
|
$
|
|
* 3.
|
Current liabilities.
|
$
|
|
4.
|
Net working capital (line 2 minus line 3).
|
$
|
|
* 5.
|
Tangible net worth.
|
$
|
|
* 6.
|
If less than 90% or assets are located in the
U.S., given total U.S. assets.
|
$
|
|
Yes
|
No
|
|
7.
|
Is line 5 at least $10 million?
|
|
8.
|
Is line 4 at least 6 times line Is
|
|
9.
|
Is line 5 at least 6 times line Is
|
|
* 10.
|
Are at least 90% of assets located in the U.S.?
If
not, complete line 11.
|
|
11.
|
Is line 6 at least 6 times line Is
|
Alternative II
|
1.
|
Amount of annual aggregate liability coverage to
be demonstrated.
|
$
|
|
2.
|
Current bond rating of most recent issuance and
name of rating service.
|
|
|
3.
|
Date of issuance of bond.
|
|
|
4.
|
Date of maturity of bond.
|
|
|
* 5.
|
Tangible net worth.
|
$
|
|
* 6.
|
Total assets in U.S. (required only if less than
90% of assets are located in the U.S.).
|
$
|
|
Yes
|
No
|
|
7.
|
Is line 5 at least $10 million?
|
|
|
8.
|
Is line 5 at least 6 times line Is
|
|
|
9.
|
Are at least 90% of assets located in the U.S.?
If
not, complete line 10.
|
|
|
* 10.
|
Is line 6 at least 6 times line Is
|
|
[Fill in part B if you are using the financial test to
demonstrate assurance of both liability coverage and closure or postclosure
care.]
Part B. Closure or Postclosure Care and Liability
Coverage
[Fill in Alternative I if the criteria of paragraphs
(f)(1)(i) of Section264.143 or Section264.145 and (f)(1)(i) of Section264.147
are used or if the criteria of paragraphs (e)(1)(i) of Section265.143 or
Section265.145 and (f)(1)(i) of Section265.147 are used. Fill in Alternative II
if the criteria of paragraphs (f)(1)(ii) of Section264.143 or Section264.145
and (f)(1)(ii) of Section264.147 are used or if the criteria of paragraphs
(e)(1)(ii) of Section265.143 or Section265.145 and (f)(1)(ii) of Section265.147
are used.]
Alternative I
|
1.
|
Sum of current closure and postclosure cost
estimates (total of all cost estimates listed above).
|
$
|
|
2.
|
Amount of annual aggregate liability coverage to
be demonstrated.
|
$
|
|
3.
|
Sum of lines 1 and 2.
|
$
|
|
* 4.
|
Total liabilities (if any portion of your closure
or postclosure cost estimates is included in your total liabilities, you may
deduct that portion from this line and add that amount to lines 5 and
6).
|
$
|
|
5.
|
Tangible net worth.
|
$
|
|
* 6.
|
Net worth.
|
$
|
|
* 7.
|
Current assets.
|
$
|
|
* 8.
|
Current liabilities.
|
$
|
|
9.
|
Net working capital (line 7 minus line 8).
|
$
|
|
* 10.
|
The sum of net income plus depreciation,
depletion, and amortization.
|
$
|
|
* 11.
|
Total assets in U.S. (required only if less than
90% of assets are located in the U.S.).
|
$
|
|
Yes |
No
|
|
12.
|
Is line 5 at least $10 million?
|
|
|
13.
|
Is line 5 at least 6 times line 3?
|
|
|
14.
|
Is line 9 at least 6 times line 3?
|
|
|
15.
|
Are at least 90% of assets located in the U.S.?
If
not, complete line 16.
|
|
|
16.
|
Is line 11 at least 6 times line 3?
|
|
|
17.
|
Is line 4 divided by line 6 less than 2.0?
|
|
|
18.
|
Is line 10 divided by line 4 greater than
0.Is
|
|
|
19.
|
Is line 7 divided by line 8 greater than
1.5?
|
|
Alternative II
|
1.
|
Sum of current closure and postclosure cost
estimates (total of all cost estimates listed above).
|
$
|
|
2.
|
Amount of annual aggregate liability coverage to
be demonstrated.
|
$
|
|
3.
|
Sum of lines 1 and 2.
|
$
|
|
4.
|
Current bond rating of most recent issuance and
name of rating service.
|
|
|
5.
|
Date of issuance of bond.
|
|
|
6.
|
Date of maturity of bond.
|
|
|
* 7.
|
Tangible net worth (if any portion of the closure
or postclosure cost estimates is included in "total liabilities" on your
financial statements you may add that portion to this line).
|
$
|
|
* 8.
|
Total assets in U.S. (required only if less than
90% of assets are located in the U.S.).
|
$
|
|
Yes |
No
|
|
9.
|
Is line 7 at least $10 million?
|
|
|
10.
|
Is line 7 at least 6 times line 3?
|
|
|
* 11.
|
Are at least 90% of assets located in the U.S.?
If
not, complete line 12.
|
|
|
12.
|
Is line 8 at least 6 times line 3?
|
|
I hereby certify that the wording of this letter is
identical to the wording specified in 264.151(g) as such regulations were
constituted on the date shown immediately below.
[Signature]________________________
[Name]_____________________________
[Title]____________________________
[Date]_____________________________
264.151 APPENDIX H (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
H--
(1): Corporate
Guarantee
Corporate Guarantee for Closure or Postclosure Care
Guarantee made this __________ (date) by [name of
guaranteeing entity], a business corporation organized under the laws of the
State of South Carolina, herein referred to as guarantor. This guarantee is
made on behalf of the [owner or operator] of [business address], which is [one
of the following: "our subsidiary"; "a subsidiary of [name and address of
common parent corporation], of which guarantor is a subsidiary"; or "an entity
with which guarantor has a substantial business relationship, as defined in
R.61-79 [either 264.141(h) or 265.141(h) ]" to the Department
Recitals
1.
Guarantor meets or exceeds the financial test criteria and agrees to comply
with the reporting requirements for guarantors as specified in R.61-79.264
Section264.143(f)(f), 264.145(f), 265.143(e), and 265.145(e).
2. [Owner or operator] owns or operates the
following hazardous waste management facility(ies) covered by this guarantee:
[List for each facility: EPA Identification Number, name, and address. Indicate
for each whether guarantee is for closure, postclosure care, or
both.]
3. "Closure plans" and
"postclosure plans" as used below refer to the plans maintained as required by
Subpart G of R.61-79.264 and R.61-79.265 for the closure and postclosure care
of facilities as identified above.
4. For value received from [owner or
operator], guarantor guarantees to the Department that in the event that [owner
or operator] fails to perform [insert "closure," "postclosure care" or "closure
and postclosure care"] of the above facility(ies) in accordance with the
closure or postclosure plans and other permit or interim status requirements
whenever required to do so, the guarantor shall do so or establish a trust fund
as specified in Subpart H of R.61-79.264 and R.61-79.265, as applicable, in the
name of [owner or operator] in the amount of the current closure or postclosure
cost estimates as specified in Subpart H of R.61-79.264 and
R.61-79.265.
5. Guarantor agrees
that if, at the end of any fiscal year before termination of this guarantee,
the guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the Department and to EPA Regional
Administrator(s) for the Region(s) in which the facility(ies) is (are) located
and to [owner or operator] that he intends to provide alternate financial
assurance as specified in Subpart H of R.61-79.264 and R.61-79.265, as
applicable, in the name of [owner or operator]. Within 120 days after the end
of such fiscal year, the guarantor shall establish such financial assurance
unless [owner or operator] has done so.
6. The guarantor agrees to notify the
Department by certified mail, of a voluntary or involuntary proceeding under
Title 11 (Bankruptcy), U.S. Code, naming guarantor as debtor, within 10 days
after commencement of the proceeding. (amended 6/89)
7. Guarantor agrees that within 30 days after
being notified by the Department of a determination that guarantor no longer
meets the financial test criteria or that he is disallowed from continuing as a
guarantor of closure or postclosure care, he shall establish alternate
financial assurance as specified in Subpart H of R.61-79.264 or R. 61-79.265,
as applicable, in the name of [owner or operator] unless [owner or operator]
has done so.
8. Guarantor agrees to
remain bound under this guarantee notwithstanding any or all of the following:
amendment or modification of the closure or postclosure plan, amendment or
modification of the permit, the extension or reduction of the time of
performance of closure or postclosure, or any other modification or alteration
of an obligation of the owner or operator pursuant to R.61-79.264 or R.
61-79.265.
9. Guarantor agrees to
remain bound under this guarantee for so long as [owner or operator] must
comply with the applicable financial assurance requirements of Subpart H of
R.61-79.264 and R.61-79.265 for the above listed facilities, except as provided
in paragraph 10 of this agreement.
10. Guarantor agrees that if [owner or
operator] fails to provide alternate financial assurance as specified in
Subpart H of R.61-79.264 or R. 61-79.265, as applicable, and obtain written
approval of such assurance from the Department within 90 days after a notice of
cancellation by the guarantor is received by the Department from guarantor,
guarantor shall provide such alternate financial assurance in the name of
[owner or operator].
11. Guarantor
expressly waives notice of acceptance of this guarantee by the Department or by
[owner or operator]. Guarantor also expressly waives notice of amendments or
modifications of the closure and/or postclosure plan and of amendments or
modifications of the facility permit(s).
I hereby certify that the wording of this guarantee is
identical to the wording specified in R.61-79.264.151(h)(h)as such regulations
were constituted on the date first above written.
Effective date: __________
[Name of guarantor] __________
[Authorized signature for guarantor] __________
[Name of person signing] __________
[Title of person signing] __________
[Signature of witness or notary] __________
H--(2) Guarantee for Liability Coverage--(revised
12/93)
Guarantee made this __________ [date] by __________ [name
of guaranteeing entity], a business corporation organized under the laws of the
State of South Carolina, herein referred to as guarantor. This guarantee is
made on behalf of [owner or operator] of [business address], which is one of
the following: "our subsidiary;" "a subsidiary of [name and address of common
parent corporation], of which guarantor is a subsidiary;" or "an entity with
which guarantor has a substantial business relationship, as defined in R.61-79
[either 264.141(h) or 265.141(h) ]", to any and all third parties who have
sustained or may sustain bodily injury or property damage caused by [sudden
and/or nonsudden] accidental occurrences arising from operation of the
facility(ies) covered by this guarantee.
Recitals
1.
Guarantor meets or exceeds the financial test criteria and agrees to comply
with the reporting requirements for guarantors as specified in
R.61-79.264.147(g)(g) and R.61-79.265.147(g)(g).
2. [Owner or operator] __________ owns or
operates the following hazardous waste management facility(ies) covered by this
guarantee: [List for each facility: EPA Identification Number, name, and
address; and if guarantor is incorporated outside the United States list the
name and address of the guarantor's registered agent in each State]. This
corporate guarantee satisfies RCRA third-party liability requirements for
[insert "sudden" or "nonsudden" or "both sudden and nonsudden"] accidental
occurrences in above-named owner or operator facilities for coverage in the
amount of [insert dollar amount] for each occurrence and [insert dollar amount]
annual aggregate.
3. For value
received from __________ [owner or operator], guarantor guarantees to any and
all third parties who have sustained or may sustain bodily injury or property
damage caused by [sudden and/or nonsudden] accidental occurrences arising from
operations of the facility(ies) covered by this guarantee that in the event
that [owner or operator] fails to satisfy a judgement or award based on a
determination of liability for bodily injury or property damage to third
parties caused by [sudden and/or nonsudden] accidental occurrences, arising
from the operation of the above-named facilities, or fails to pay an amount
agreed to in settlement of a claim arising from or alleged to arise from such
injury or damage, the guarantor will satisfy such judgment(s), award(s), or
settlement agreement(s) up to the limits of coverage identified
above.
4. Such obligation does not
apply to any of the following:
(a) Bodily
injury or property damage for which [insert owner or operator] is obligated to
pay damages by reason of the assumption of liability in a contract or
agreement. This exclusion does not apply to liability for damages that [insert
owner or operator] would be obligated to pay in the absence of the contract or
agreement.
(b) Any obligation of
[insert owner or operator] under a workers compensation, disability benefits,
or unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert owner or operator]
arising from, and in the course of, employment by [insert owner or operator];
or
(2) The spouse, child, parent,
brother, or sister of that employee as a consequence of, or arising from, and
in the course of employment by [insert owner or operator]. This exclusion
applies:
(A) Whether [insert owner or
operator] may be liable as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert owner or operator];
(2)
Premises that are sold, given away or abandoned by [insert owner or operator]
if the property damage arises out of any part of those premises;
(3) Property loaned to [insert owner or
operator];
(4) Personal property in
the care, custody or control of [insert owner or operator];
(5) That particular part of real property on
which [insert owner or operator] or any contractors or subcontractors working
directly or indirectly on behalf of [insert owner or operator] are performing
operations, if the property damage arises out of these operations.
5. Guarantor agrees
that if, at the end of any fiscal year before termination of this guarantee,
the guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the Department and to __________
[owner or operator] that he intends to provide alternate liability coverage as
specified in R.61-79.264.147 and 265.147 as applicable, in the name of
__________ [owner or operator]. Within 120 days after the end of such fiscal
year, the guarantor shall establish such liability coverage unless __________
[owner or operator] has done so.
6.
The guarantor agrees to notify the Department by certified mail, of a voluntary
or involuntary proceeding under Title 11 (Bankruptcy), U.S.Code, naming
guarantor as debtor, within 10 days after commencement of the
proceeding.
7. Guarantor agrees
that within 30 days after being notified by the Department of a determination
that guarantor no longer meets the financial test criteria or that he is
disallowed from continuing as a guarantor, he shall establish alternate
liability coverage as specified in R.61-79.264.147 or 265.147 in the name of
__________ [owner or operator], unless __________ [owner or operator] has done
so.
8. Guarantor reserves the right
to modify this agreement to take into account amendment or modification of the
liability requirements set by R.61-79.264.147 and 265.147, provided that such
modification shall become effective only if the Department does not disapprove
the modification within 30 days of receipt of notification of the
modification.
9. Guarantor agrees
to remain bound under this guarantee for so long as __________ [owner or
operator] must comply with the applicable requirements of R.61-79.264.147 and
R.61-79.265.147 for the above-listed facility(ies), except as provided in
paragraph 10 of this agreement.
10.
[Insert the following language if the guarantor is
(a) a direct or higher-tier corporate parent,
or (b) a firm whose parent corporation is also the parent corporation of the
owner or operator]:
Guarantor may terminate this guarantee by sending notice by
certified mail to the Department and to [owner or operator], provided that this
guarantee may not be terminated unless and until [the owner or operator]
obtains, and the Department approve alternate liability coverage complying with
R.61-79.264.147 and/or R.61-79.265.147.
[Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its "substantial business relationship" with
the owner or operator]:
Guarantor may terminate this guarantee 120 days following
receipt of notification, through certified mail, by the Department and by [the
owner or operator].
11. Guarantor hereby expressly waives notice
of acceptance of this guarantee by any party.
12. Guarantor agrees that this guarantee is
in addition to and does not affect any other responsibility or liability of the
guarantor with respect to the covered facilities.
13. The Guarantor shall satisfy a third-party
liability claim only on receipt of one of the following documents:
(a) Certification from the Principal and the
third-party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Principal] and [insert
name and address of third-party claimant(s) ], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Principal's] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of $[
].
[Signatures]
Principal __________
(Notary) Date __________
[Signatures] __________
Claimant(s) __________
(Notary) Date __________
(b) A valid final court order establishing a
judgment against the Principal for bodily injury or property damage caused by
sudden or nonsudden accidental occurrences arising from the operation of the
Principal's facility or group of facilities.
14. In the event of combination of this
guarantee with another mechanism to meet liability requirements, this guarantee
will be considered [insert primary or excess] coverage.
I hereby certify that the wording of this guarantee is
identical to the wording specified in R.61-79.264(h)(2)(h)(2)as such
regulations were constituted on the date shown immediately below.
Effective date: __________
[Name of guarantor] __________
[Authorized signature for guarantor] __________
[Name of person signing] __________
[Title of person signing] __________
[Signature of witness or notary] __________
264.151
APPENDIX I (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Liability Requirements; Endorsements
Hazardous Waste Facility Liability Endorsement
1. This endorsement certifies that the policy
to which the endorsement is attached provides liability insurance covering
bodily injury and property damage in connection with the insured's obligation
to demonstrate financial responsibility under 264.147 or 265.147. The coverage
applies at [list EPA Identification Number, name, and address for each
facility] for __________ [insert "sudden accidental occurrences," "nonsudden
accidental occurrences," or "sudden and nonsudden accidental occurrences;" if
coverage is for multiple facilities and the coverage is different for different
facilities, indicate which facilities are insured for sudden accidental
occurrences, which are insured for nonsudden accidental occurrences, and which
are insured for both]. The limits of liability are __________ [insert the
dollar amount of the "each occurrence" and "annual aggregate" limits of the
Insurer's liability], exclusive of legal defense costs.
2. The insurance afforded with respect to
such occurrences is subject to all of the terms and conditions of the policy;
provided, however, that any provisions of the policy inconsistent with
subsections (a) through (e) of this Paragraph 2 are hereby amended to conform
with subsections (a) through (e):
(a)
Bankruptcy or insolvency of the insured shall not relieve the Insurer of its
obligations under the policy to which this endorsement is attached.
(b) The Insurer is liable for the payment of
amounts within any deductible applicable to the policy, with a right of
reimbursement by the insured for any such payment made by the Insurer. This
provision does not apply with respect to that amount of any deductible for
which coverage is demonstrated as specified in 264.147(f) or
265.147(f).
(c) Whenever requested
by the department, the Insurer agrees to furnish to the department a signed
duplicate original of the policy and all endorsements.
(d) Cancellation of this endorsement, whether
by the Insurer, the insured, a parent corporation providing insurance coverage
for its subsidiary, or by a firm having an insurable interest in and obtaining
liability insurance on behalf of the owner or operator of the hazardous waste
management facility, will be effective only upon written notice and only after
the expiration of 60 days after a copy of such written notice is received by
the department.
(e) Any other
termination of this endorsement will be effective only upon written notice and
only after the expiration of thirty (30) days after a copy of such written
notice is received by the Department.
Attached to and forming part of policy No. __________
issued by [name of Insurer], herein called the Insurer, of [address of Insurer]
to [name of insured] of [address] this __________ day of __________, 19___. The
effective date of said policy is __________ day of __________, 19___.
I hereby certify that the wording of this endorsement is
identical to the wording specified in 264.151(i) as such regulation was
constituted on the date first above written, and that the Insurer is licensed
to transact the business of insurance, or eligible to provide insurance as an
excess or surplus lines insurer, in one or more States.
[Signature of Authorized Representatives of Insurer]
__________
[Type name] __________
[Title], Authorized Representatives of [name of Insurer]
__________
[Address of Representative] __________
264.151 APPENDIX J
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Liability Requirements; Certificate
(1) Hazardous Waste Facility Certificate of
Liability Insurance
1. __________ [Name of
Insurer], __________ (the "Insurer"), of __________ [address of insurer] hereby
certifies that it has issued liability insurance covering bodily injury and
property damage to __________ [name of insured], (the "insured"), of __________
[address of insured] in connection with insured's obligation to demonstrate
financial responsibility under R.61-79.264.147 or 265.147. The coverage applies
at [list EPA Identification Number, name, and address for each facility] for
__________ [insert "sudden accidental occurrences," "nonsudden accidental
occurrences," or "sudden and nonsudden accidental occurrences;" if coverage is
for multiple facilities and the coverage is different for different facilities,
indicate which facilities are insured for sudden accidental occurrences, which
are insured for nonsudden accidental occurrences, and which are insured for
both]. The limits of liability are __________ [insert the dollar amount of the
"each occurrence" and "annual aggregate" limits of the Insurer's liability],
exclusive of legal defense costs. The coverage is provided under policy number
__________, issued on __________ [date]. The effective date of said policy is
__________ [date].
2. The Insurer
further certifies the following with respect to the insurance described in
Paragraph 1:
(a) Bankruptcy or insolvency of
the insured shall not relieve the Insurer of its obligations under the
policy.
(b) The Insurer is liable
for the payment of amounts within any deductible applicable to the policy, with
a right of reimbursement by the insured for any such payment made by the
Insurer. This provision does not apply with respect to that amount of any
deductible for which coverage is demonstrated as specified in
R.61-79.264.147(f)(f) and 265.147(f)(f).
(c) Whenever requested by the department, the
Insurer agrees to furnish to the department a signed duplicate original of the
policy and all endorsements.
(d)
Cancellation of the insurance, whether by the insurer, the insured, a parent
corporation providing insurance coverage for its subsidiary, or by a firm
having an insurable interest in and obtaining liability insurance on behalf of
the owner or operator of the hazardous waste management facility, will be
effective only upon written notice and only after the expiration of 60 days
after a copy of such written notice is received by the department.
(e) Any other termination of the insurance
will be effective only upon written notice and only after the expiration of
thirty (30) days after a copy of such written notice is received by the
Department.
I hereby certify that the wording of this instrument is
identical to the wording specified in 264.151(j) as such regulation was
constituted on the date first above written, and that the Insurer is licensed
to transact the business of insurance, or eligible to provide insurance as an
excess or surplus lines insurer, in one or more States.
[Signature of Authorized Representative of Insurer]
__________
[Type name] __________
[Title], Authorized Representative of [name of Insurer]
__________
[Address of Representative] __________
264.151
APPENDIX K (12/93; 12/94; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Irrevocable Standby Letter of Credit
Chief
Bureau of Land and Waste Management
2600 Bull Street
Columbia, SC 29201
Dear Sir or Madam: We hereby establish our Irrevocable
Standby Letter of Credit No. ____________ in the favor of ["any and all
third-party liability claimants" or insert name of trustee of the standby trust
fund], at the request and for the account of [owner or operator's name and
address] for third-party liability awards or settlements up to [in words] U.S.
dollars $ ____________ per occurrence and the annual aggregate amount of [in
words] U.S. dollars $ ____________ , for sudden accidental occurrences and/or
for third-party liability awards or settlements up to the amount of [in words]
U.S. dollars $ ____________ per occurrence, and the annual aggregate amount of
[in words] U.S. dollars $ ____________ , for nonsudden accidental occurrences
available upon presentation of a sight draft bearing reference to this letter
of credit No. ____________ , and [insert the following language if the letter
of credit is being used without a standby trust fund:
(1) a signed certificate reading as follows:
Certificate of Valid Claim
The undersigned, as parties [insert principal] and [insert
name and address of third party claimant(s) ], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operations of [principal's] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of
__________. We hereby certify that the claim does not apply to any of the
following:
(a) Bodily injury
or property damage for which [insert principal] is obligated to pay damages by
reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that [insert principal] would
be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert principal]
under a workers' compensation, disability benefits, or unemployment
compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert principal] arising
from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert principal].
This exclusion applies:
(A) Whether [insert principal] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert principal];
(2) Premises
that are sold, given away or abandoned by [insert principal] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
principal];
(4) Personal property
in the care, custody or control of [insert principal];
(5) That particular part of real property on
which [insert principal] or any contractors or subcontractors working directly
or indirectly on behalf of [insert principal] are performing operations, if the
property damage arises out of these operations.
[Signatures]
Grantor __________
[Signatures]
Claimant(s) __________
or (2) a valid final court order establishing a judgment
against the Grantor for bodily injury or property damage caused by sudden or
nonsudden accidental occurrences arising from the operation of the Grantor's
facility or group of facilities.
This letter of credit is effective as of [date] and shall
expire on [date at least one year later], but such expiration date shall be
automatically extended for a period of [at least one year] on [date] and on
each successive expiration date, unless, at least 120 days before the current
expiration date, we notify you, the Department, and [owner's or operator's
name] by certified mail that we have decided not to extend this letter of
credit beyond the current expiration date.
Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor such draft upon
presentation to us.
[Insert the following language if a standby trust fund is
not being used: "In the event that this letter of credit is used in combination
with another mechanism for liability coverage, this letter of credit shall be
considered [insert "primary" or "excess" coverage]."
We certify that the wording of this letter of credit is
identical to the wording specified in 264.151(k) as such regulations were
constituted on the date shown immediately below.
[Signature(s) and title(s) of official(s) of issuing
institution]
[Date]
This credit is subject to [insert "the most recent edition
of the Uniform Customs and Practice for Documentary Credits, published and
copyrighted by the International Chamber of Commerce," or "the Uniform
Commercial Code"].
264.151 APPENDIX L
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Payment Bond
Surety Bond No. [Insert number] __________
Parties [Insert name and address of owner or operator],
Principal, incorporated in [Insert State of incorporation] of [Insert city and
State of principal place of business] and [Insert name and address of surety
company(ies) ], Surety Company(ies), of [Insert surety(ies) place of
business].
|
EPA Identification Number, name, and address for
each facility guaranteed by this bond:
|
|
Sudden accidental occurrences
|
Nonsudden accidental occurrences
|
|
Penal Sum Per Occurrence.
|
[insert amount] [insert amount]
|
|
Annual Aggregate
|
[insert amount] [insert amount]
|
Purpose: This is an agreement between the Surety(ies) and
the Principal under which the Surety(ies), its (their) successors and
assignees, agree to be responsible for the payment of claims against the
Principal for bodily injury and/or property damage to third parties caused by
["sudden" and/or "nonsudden"] accidental occurrences arising from operations of
the facility or group of facilities in the sums prescribed herein; subject to
the governing provisions and the following conditions.
Governing Provisions:
(1) SC Hazardous Waste Management Act 44-56
et seq. and Section3004 of the Resource Conservation and Recovery Act of 1976,
as amended.
(2) Rules and
regulations of the Department of Health and Environmental Control, particularly
R.61-79.264.147 or "265.147"] (if applicable).
Conditions:
(1)
The Principal is subject to the applicable governing provisions that require
the Principal to have and maintain liability coverage for bodily injury and
property damage to third parties caused by ["sudden" and/or "nonsudden"]
accidental occurrences arising from operations of the facility or group of
facilities. Such obligation does not apply to any of the following:
(a) Bodily injury or property damage for
which [insert principal] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert principal] would be obligated to
pay in the absence of the contract or agreement.
(b) Any obligation of [insert principal]
under a workers' compensation, disability benefits, or unemployment
compensation law or similar law.
(c) Bodily injury to:
(1) An employee of [insert principal] arising
from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert principal]. This exclusion applies:
(A) Whether [insert principal] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert principal];
(2) Premises
that are sold, given away or abandoned by [insert principal] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
principal];
(4) Personal property
in the care, custody or control of [insert principal];
(5) That particular part of real property on
which [insert principal] or any contractors or subcontractors working directly
or indirectly on behalf of [insert principal] are performing operations, if the
property damage arises out of these operations.
(2) This bond assures that the
Principal will satisfy valid third party liability claims, as described in
condition 1.
(3) If the Principal
fails to satisfy a valid third party liability claim, as described above, the
Surety(ies) becomes liable on this bond obligation.
(4) The Surety(ies) shall satisfy a third
party liability claim only upon the receipt of one of the following documents:
(a) Certification from the Principal and the
third party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert name of Principal] and
[insert name and address of third party claimant(s) ], hereby certify that the
claim of bodily injury and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Principal's] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of $[
].
[Signature]
Principal __________
[Notary] Date __________
[Signature(s) ] __________
Claimant(s) __________
[Notary] Date __________
or
(b)
A valid final court order establishing a judgment against the Principal for
bodily injury or property damage caused by sudden or nonsudden accidental
occurrences arising from the operation of the Principal's facility or group of
facilities.
(5) In the
event of combination of this bond with another mechanism for liability
coverage, this bond will be considered [insert "primary" or "excess"]
coverage.
(6) The liability of the
Surety(ies) shall not be discharged by any payment or succession of payments
hereunder, unless and until such payment or payments shall amount in the
aggregate to the penal sum of the bond. In no event shall the obligation of the
Surety(ies) hereunder exceed the amount of said annual aggregate penal sum,
provided that the Surety(ies) furnish(es) notice to the Department forthwith of
all claims filed and payments made by the Surety(ies) under this
bond.
(7) The Surety(ies) may
cancel the bond by sending notice of cancellation by certified mail to the
Principal and the Department, provided, however, that cancellation shall not
occur during the 120 days beginning on the date of receipt of the notice of
cancellation by the Principal and the Department, as evidenced by the return
receipt.
(8) The Principal may
terminate this bond by sending written notice to the Surety(ies) and to the
Department.
(9) The Surety(ies)
hereby waive(s) notification of amendments to applicable laws, statutes, rules
and regulations and agree(s) that no such amendment shall in any way alleviate
its (their) obligation on this bond.
(10) This bond is effective from [insert
date] (12:01 a.m., standard time, at the address of the Principal as stated
herein) and shall continue in force until terminated as described above.
In Witness Whereof, the Principal and Surety(ies) have
executed this Bond and have affixed their seals on the date set forth
above.
The persons whose signatures appear below hereby certify
that they are authorized to execute this surety bond on behalf of the Principal
and Surety(ies) and that the wording of this surety bond is identical to the
wording specified in 264.151(1), as such regulations were constituted on the
date this bond was executed.
PRINCIPAL
[Signature(s) ] __________
[Name(s) ] __________
[Title(s) ] __________
[Corporate Seal] __________
CORPORATE SURETY[IES]
[Name and address] __________
State of incorporation: __________
Liability Limit: $__________
[Signature(s) ] __________
[Name(s) and title(s) ] __________
[Corporate seal] __________
[For every co-surety, provide signature(s), corporate seal,
and other information in the same manner as for Surety above.]
Bond premium: $__________
264.151 APPENDIX M (1) (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
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 Department, an agency of the State of South
Carolina Government, has established certain regulations applicable to the
Grantor, requiring that an owner or operator of a hazardous waste management
facility or group of facilities must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden accidental
and/or nonsudden accidental occurrences arising from operations of the facility
or group of facilities.
Whereas, the Grantor has elected to establish a trust to
assure all or part of such financial responsibility for the facilities
identified herein.
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as
follows:
Section1. 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.
Section2.
Identification of Facilities. This agreement pertains to the facilities
identified on attached schedule A [on schedule A, for each facility list the
EPA Identification Number, name, and address of the facility(ies) and the
amount of liability coverage, or portions thereof, if more than one instrument
affords combined coverage as demonstrated by this Agreement].
Section3. Establishment of Fund. The Grantor
and the Trustee hereby establish a trust fund, hereinafter the Fund, for the
benefit of any and all third parties injured or damaged by [sudden and/or
nonsudden] accidental occurrences arising from operation of the facility(ies)
covered by this guarantee, in the amounts of __________ [up to $1 million] per
occurrence and __________ [up to $2 million] annual aggregate for sudden
accidental occurrences and __________ [up to $3 million] per occurrence and
__________ [up to $6 million] annual aggregate for nonsudden occurrences,
except that the Fund is not established for the benefit of third parties for
the following:
(a) Bodily injury or property
damage for which [insert Grantor] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert Grantor] would be obligated to pay
in the absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under
a workers compensation, disability benefits, or unemployment compensation law
or any similar law.
(c) Bodily
injury to:
(1) An employee of [insert Grantor]
arising from, and in the course of, employment by [insert Grantor];
or
(2) The spouse, child, parent,
brother or sister of that employee as a consequence of, or arising from, and in
the course of employment by [insert Grantor].
This exclusion applies:
(A) Whether [insert Grantor] may be liable as
an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert Grantor];
(2) Premises
that are sold, given away or abandoned by [insert Grantor] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
Grantor];
(4) Personal property in
the care, custody or control of [insert Grantor];
(5) That particular part of real property on
which [insert Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations, if the
property damage arises out of these operations.
In the event of combination with another mechanism for
liability coverage, the fund shall be considered [insert primary or excess]
coverage.
The Fund is established initially as consisting of the
property, which is acceptable to the Trustee, described in Schedule B attached
hereto. Such property and any other property subsequently transferred to the
Trustee is referred to as the Fund, together with all earnings and profits
thereon, less any payments or distributions made by the Trustee pursuant to
this Agreement. The Fund shall be held by the Trustee, IN TRUST, as hereinafter
provided. The Trustee shall not be responsible nor shall it undertake any
responsibility for the amount or adequacy of, nor any duty to collect from the
Grantor, any payments necessary to discharge any liabilities of the Grantor
established by the Department.
Section4. Payment for Bodily Injury or
Property Damage. The Trustee shall satisfy a third party liability claim by
making payments from the Fund only upon receipt of one of the following
documents;
(a) Certification from the Grantor
and the third party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert
name and address of third party claimant(s) ], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Grantors] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of $[
].
[Signatures]__________
Grantor
[Signatures]__________
Claimant(s)
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or nonsudden accidental occurrences arising from the operation of the
Grantors facility or group of facilities.
Section5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of cash or securities
acceptable to the Trustee.
Section6. Trustee Management. The Trustee
shall invest and reinvest the principal and income, in accordance with general
investment policies and guidelines which the Grantor may communicate in writing
to the Trustee from time to time, subject, however, to the provisions of this
section. In investing, reinvesting, exchanging, selling, and managing the Fund,
the Trustee shall discharge his duties with respect to the trust fund solely in
the interest of the beneficiary and with the care, skill, prudence, and
diligence under the circumstance then prevailing which persons of prudence,
acting in a like capacity and familiar with such matters, would use in the
conduct of an enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended, 15
U.S.C. 80a -
2.(a),
shall not be acquired or held unless they are securities or other obligations
of the Federal or a State government;
(ii) The Trustee is authorized to invest the
Fund in time or demand deposits of the Trustee, to the extent insured by an
agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section7. Commingling and Investment. The
Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common commingled, or collective trust fund
created by the Trustee in which the fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company Act of 1940, 15 U.S.C. 81a-1 et seq., including one which may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section8. 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.
Section9. 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.
Section10. Annual
Valuations. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the appropriate EPA Regional Administrator a statement confirming the value of
the Trust. Any securities in the Fund shall be valued at market value as of no
more than 60 days prior to the anniversary date of establishment of the Fund.
The failure of the Grantor to object in writing to the Trustee within 90 days
after the statement has been furnished to the Grantor and the Department shall
constitute a conclusively binding assent by the Grantor barring the Grantor
from asserting any claim or liability against the Trustee with respect to
matters disclosed in the statement.
Section11. Advice of Counsel. The Trustee may
from time to time consult with counsel, who may be counsel to the Grantor with
respect to any question arising as to the construction of this Agreement or any
action to be taken hereunder. The Trustee shall be fully protected, to the
extent permitted by law, in acting upon the advice of counsel.
Section12. 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.
Section13. 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 trustees acceptance of the appointment, the Trustee shall
assign, transfer, and pay over to the successor trustee the funds and
properties then constituting the Fund. If for any reason the Grantor cannot or
does not act in the event of the resignation of the Trustee, the Trustee may
apply to a court of competent jurisdiction for the appointment of a successor
trustee or for instructions. The successor trustee shall specify the date on
which it assumes administration of the trust in a writing sent to the Grantor,
the Department, and the present Trustee by certified mail 10 days before such
change becomes effective. Any expenses incurred by the Trustee as a result of
any of the acts contemplated by this section shall be paid as provided in
Section9.
Section14. Instructions
to the Trustee. All orders, requests, and instructions by the Grantor to the
Trustee shall be in writing, signed by such persons as are designated in the
attached Exhibit A or such other designees as the Grantor may designate by
amendments to Exhibit A. The Trustee shall be fully protected in acting without
inquiry in accordance with the Grantors orders, requests, and instructions. All
orders, requests, and instructions by the Department to the Trustee shall be in
writing, signed by a representative of the Department, and the Trustee shall
act and shall be fully protected in acting in accordance with such orders,
requests, and instructions. The Trustee shall have the right to assume, in the
absence of written notice to the contrary, that no event constituting a change
or a termination of the authority of any person to act on behalf of the Grantor
or the Department hereunder has occurred. The Trustee shall have no duty to act
in the absence of such orders, requests, and instructions from the Grantor
and/or the Department, except as provided for herein.
Section15. Notice of Nonpayment. If a payment
for bodily injury or property damage is made under Section4 of this trust, the
Trustee shall notify the Grantor of such payment and the amount(s) thereof
within five (5) working days. The Grantor shall, on or before the anniversary
date of the establishment of the Fund following such notice, either make
payments to the Trustee in amounts sufficient to cause the trust to return to
its value immediately prior to the payment of claims under Section4, or shall
provide written proof to the Trustee that other financial assurance for
liability coverage has been obtained equalling the amount necessary to return
the trust to its value prior to the payment of claims. If the Grantor does not
either make payments to the Trustee or provide the Trustee with such proof, the
Trustee shall within 10 working days after the anniversary date of the
establishment of the Fund provide a written notice of nonpayment to the
Department.
Section16. Amendment of
Agreement. This Agreement may be amended by an instrument in writing executed
by the Grantor, the Trustee, and the Department, or by the Trustee and the
Department if the Grantor ceases to exist.
Section17. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section16, this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the Department, or by
the Trustee and the Department, if the Grantor ceases to exist. Upon
termination of the Trust, all remaining trust property, less final trust
administration expenses, shall be delivered to the Grantor.
The Department will agree to termination of the Trust when
the owner or operator substitutes alternate financial assurance as specified in
this section.
Section18.
Immunity and Indemnification. The Trustee shall not incur personal liability of
any nature in connection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor
or the Department issued in accordance with this Agreement. The Trustee shall
be indemnified and saved harmless by the Grantor or from the Trust Fund, or
both, from and against any personal liability to which the Trustee may be
subjected by reason of any act or conduct in its official capacity, including
all expenses reasonably incurred in its defense in the event the Grantor fails
to provide such defense.
Section19.
Choice of Law. This Agreement shall be administered, construed, and enforced
according to the laws of the State of South Carolina.
Section20. Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each section of this
Agreement shall not affect the interpretation or the legal efficacy of this
Agreement.
In Witness Whereof the parties have caused this Agreement
to be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in 264.151(m) as such regulations were constituted on the
date first above written.
__________
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
__________
[Signature of Trustee]
Attest:
[Title]
[Seal]
264.151. APPENDIX M (2)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Certification of Acknowledgement
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]
264.151. APPENDIX N--(1)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Standby Trust Agreement
Trust Agreement, the "Agreement," entered into as of [date]
by and between [name of the owner or operator] a [name of a State] [insert
"corporation," "partnership," "association," or "proprietorship" ], the
"Grantor," and [name of corporate trustee], [insert, "incorporated in the State
of __________" or "a national bank" ], the "trustee."
Whereas the South Carolina Department of Health and
Environmental Control, "the Department", an agency of the State of South
Carolina Government, has established certain regulations applicable to the
Grantor, requiring that an owner or operator of a hazardous waste management
facility or group of facilities must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden accidental
and/or nonsudden accidental occurrences arising from operations of the facility
or group of facilities.
Whereas, the Grantor has elected to establish a standby
trust into which the proceeds from a letter of credit may be deposited to
assure all or part of such financial responsibility for the facilities
identified herein.
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as
follows:
Section1. 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.
Section2.
Identification of Facilities. This agreement pertains to the facilities
identified on attached schedule A [on schedule A, for each facility list the
EPA Identification Number, name, and address of the facility(ies) and the
amount of liability coverage, or portions thereof, if more than one instrument
affords combined coverage as demonstrated by this Agreement].
Section3. Establishment of Fund. The Grantor
and the Trustee hereby establish a standby trust fund, hereafter the "Fund,"
for the benefit of any and all third parties injured or damaged by [sudden
and/or nonsudden] accidental occurrences arising from operation of the
facility(ies) covered by this guarantee, in the amounts of __________ [up to $1
million] per occurrence and __________ [up to $2 million] annual aggregate for
sudden accidental occurrences and __________ [up to $3 million] per occurrence
and __________ [up to $6 million] annual aggregate for nonsudden occurrences,
except that the Fund is not established for the benefit of third parties for
the following:
(a) Bodily injury or property
damage for which [insert Grantor] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert Grantor] would be obligated to pay
in the absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under
a workers compensation, disability benefits, or unemployment compensation law
or any similar law.
(c) Bodily
injury to:
(1) An employee of [insert Grantor]
arising from, and in the course of, employment by [insert Grantor];
or
(2) The spouse, child, parent,
brother or sister of that employee as a consequence of, or arising from, and in
the course of employment by [insert Grantor].
This exclusion applies:
(A) Whether [insert Grantor] may be liable as
an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert Grantor];
(2) Premises
that are sold, given away or abandoned by [insert Grantor] if the property
damage arises out of any part of those premises;
(3) Property loaned by [insert
Grantor];
(4) Personal property in
the care, custody or control of [insert Grantor];
(5) That particular part of real property on
which [insert Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations, if the
property damage arises out of these operations.
In the event of combination with another mechanism for
liability coverage, the fund shall be considered [insert "primary" or "excess"
] coverage.
The Fund is established initially as consisting of the
proceeds of the letter of credit deposited into the Fund. Such proceeds and any
other property subsequently transferred to the Trustee is referred to as the
Fund, together with all earnings and profits thereon, less any payments or
distributions made by the Trustee pursuant to this Agreement. The Fund shall be
held by the Trustee, IN TRUST, as hereinafter provided. The Trustee shall not
be responsible nor shall it undertake any responsibility for the amount or
adequacy of, nor any duty to collect from the Grantor, any payments necessary
to discharge any liabilities of the Grantor established by the
Department.
Section4. Payment for Bodily Injury or
Property Damage. The Trustee shall satisfy a third party liability claim by
drawing on the letter of credit described in Schedule B and by making payments
from the Fund only upon receipt of one of the following documents:
(a) Certification from the Grantor and the
third party claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
Certification of Valid Claim
The undersigned, as parties [insert Grantor] and [insert
name and address of third party claimant(s) ], hereby certify that the claim of
bodily injury and/or property damage caused by a [sudden or nonsudden]
accidental occurrence arising from operating [Grantors] hazardous waste
treatment, storage, or disposal facility should be paid in the amount of
$[__________].
[Signature] __________
Grantor __________
[Signatures] __________
Claimant(s) __________
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or nonsudden accidental occurrences arising from the operation of the
Grantors facility or group of facilities.
Section5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of the proceeds from
the letter of credit drawn upon by the Trustee in accordance with the
requirements of 264.151(k) and Section4 of this Agreement.
Section6. Trustee Management. The Trustee
shall invest and reinvest the principal and income, in accordance with general
investment policies and guidelines which the Grantor may communicate in writing
to the Trustee from time to time, subject, however, to the provisions of this
Section. In investing, reinvesting, exchanging, selling, and managing the Fund,
the Trustee shall discharge his duties with respect to the trust fund solely in
the interest of the beneficiary and with the care, skill, prudence, and
diligence under the circumstances then prevailing which persons of prudence,
acting in a like capacity and familiar with such matters, would use in the
conduct of an enterprise of a like character and with like aims; except that:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended, 15
U.S.C. 80 a - 2(a), shall not be acquired or held, unless they are securities
or other obligations of the Federal or a State government;
(ii) The Trustee is authorized to invest the
Fund in time or demand deposits of the Trustee, to the extent insured by an
agency of the Federal or a State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section7. 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.
Section8. 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.
Section9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements to the Trustee shall be paid from
the Fund.
Section10. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section11.
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.
Section12. 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 trustees acceptance of the
appointment, the Trustee shall assign, transfer, and pay over to the successor
trustee the funds and properties then constituting the Fund. If for any reason
the Grantor cannot or does not act in the event of the resignation of the
Trustee, the Trustee may apply to a court of competent jurisdiction for the
appointment of a successor trustee or for instructions. The successor trustee
shall specify the date on which it assumes administration of the trust in a
writing sent to the Grantor, the Department and the present Trustee by
certified mail ten (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.
Section13. Instructions to the Trustee. All
orders, requests, certifications of valid claims, and instructions to the
Trustee shall be in writing, signed by such persons as are designated in the
attached Exhibit A or such other designees as the Grantor may designate by
amendments to Exhibit A. The Trustee shall be fully protected in acting without
inquiry in accordance with the Grantors orders, requests, and instructions. The
Trustee shall have the right to assume, in the absence of written notice to the
contrary, that no event constituting a change or a termination of the authority
of any person to act on behalf of the Grantor or the Department hereunder has
occurred. The Trustee shall have no duty to act in the absence of such orders,
requests, and instructions from the Grantor and/or the Department, except as
provided for herein.
Section14.
Amendment of Agreement. This Agreement may be amended by an instrument in
writing executed by the Grantor, the Trustee, and the Department, or by the
Trustee and the Department if the Grantor ceases to exist.
Section15. Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section14, this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the Department, or by
the Trustee and the Department, if the Grantor ceases to exist. Upon
termination of the Trust, all remaining trust property, less final trust
administration expenses, shall be paid to the Grantor.
The Department will agree to termination of the Trust when
the owner or operator substitutes alternative financial assurance as specified
in this section.
Section16.
Immunity and indemnification. The Trustee shall not incur personal liability of
any nature in connection with any act or omission, made in good faith, in the
administration of this Trust, or in carrying out any directions by the Grantor
and the Department issued in accordance with this Agreement. The Trustee shall
be indemnified and saved harmless by the Grantor or from the Trust Fund, or
both, from and against any personal liability to which the Trustee may be
subjected by reason of any act or conduct in its official capacity, including
all expenses reasonably incurred in its defense in the event the Grantor fails
to provide such defense.
Section17.
Choice of Law. This Agreement shall be administered, construed, and enforced
according to the laws of the State of South Carolina.
Section18. Interpretation. As used in this
Agreement, words in the singular include the plural and words in the plural
include the singular. The descriptive headings for each Section of this
Agreement shall not affect the interpretation of the legal efficacy of this
Agreement.
In Witness Whereof the parties have caused this Agreement
to be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in 264.151(n) as such regulations were constituted on the
date first above written.
__________
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
__________
[Signature of Trustee]
Attest:
[Title]
[Seal]
264.151. APPENDIX N (2) (12/93; 5/96)
SOUTH CAROLINA DEPARTMENT OF HEALTH AND ENVIRONMENTAL
CONTROL BUREAU OF LAND AND WASTE MANAGEMENT
Certification of 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]
