(1) A
trust agreement for a trust fund, as specified in Subsection
R315-264-143(a)
or Subsection
R315-264-145(a)
or
40 CFR
265.143(a) or
265.145(a),
which are adopted by reference in Section
R315-265-1; shall
be worded as follows, except that instructions in parentheses,(), are to be
replaced with the relevant information and the parentheses deleted:
Trust Agreement
Trust Agreement, the "Agreement," entered into as of (date)
by and between (name of the owner or operator), a (name of State) (insert
"corporation," "partnership," "association," or "proprietorship"), the
"Grantor," and (name of corporate trustee), (insert "incorporated in the State
of ______ " or "a national bank"), the "Trustee."
Whereas, the Utah Waste Management and Radiation Control
Board 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:
Section 1. Definitions. As
used in this Agreement:
(a) The term
"Grantor" means the owner or operator who enters into this Agreement and any
successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who
enters into this Agreement and any successor Trustee.
(c) The term "Board" means the "Waste
Management and Radiation Control Board" created pursuant to Utah Code Annotated
19-1-106.
(d) The term "Director" means the Director of
the Division of Waste Management and Radiation Control, his successors,
designees, and any subsequent entity of the State of Utah upon whom the duties
of regulation and enforcement of regulations governing hazardous waste are
granted.
Section 2.
Identification of Facilities and Cost Estimates. This Agreement pertains to the
facilities and cost estimates identified on attached Schedule A (on Schedule A,
for each facility list the EPA Identification Number, name, address, and the
current closure and/or post-closure cost estimates, or portions thereof, for
which financial assurance is demonstrated by this Agreement).
Section 3. Establishment of Fund. The Grantor
and the Trustee hereby establish a trust fund, the "Fund," for the benefit of
the Director of the Utah Division of Waste Management and Radiation Control.
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 Director.
Section 4. Payment for Closure and
Post-Closure Care. The Trustee shall make payments from the Fund as the
Director 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
Director from the Fund for closure and post-closure expenditures in such
amounts as the Director shall direct in writing. In addition, the Trustee shall
refund to the Grantor such amounts as the Director specifies in writing. Upon
refund, such funds shall no longer constitute part of the Fund as defined
herein.
Section 5. Payments
Comprising the Fund. Payments made to the Trustee for the Fund shall consist of
cash or securities acceptable to the Trustee.
Section 6.Trustee Management. The Trustee
shall invest and reinvest the principal and income of the Fund and keep the
Fund invested as a single fund, without distinction between principal and
income, in accordance with general investment policies and guidelines which the
Grantor may communicate in writing to the Trustee from time to time, subject,
however, to the provisions Section R315-264-151. In investing, reinvesting,
exchanging, selling, and managing the Fund, the Trustee shall discharge his
duties with respect to the trust fund solely in the interest of the beneficiary
and with the care, skill, prudence, and diligence under the circumstances then
prevailing which persons of prudence, acting in a like capacity and familiar
with such matters, would use in the conduct of an enterprise of a like
character and with like aims; except that:
(i) Securities or other obligations of the
Grantor, or any other owner or operator of the facilities, or any of their
affiliates as defined in the Investment Company Act of 1940, as amended,
15 U.S.C.
80a-2.(a), shall not be acquired or held,
unless they are securities or other obligations of the Federal or a State
government;
(ii) The Trustee is
authorized to invest the Fund in time or demand deposits of the Trustee, to the
extent insured by an agency of the Federal or State government; and
(iii) The Trustee is authorized to hold cash
awaiting investment or distribution uninvested for a reasonable time and
without liability for the payment of interest thereon.
Section 7. Commingling and Investment. The
Trustee is expressly authorized in its discretion:
(a) To transfer from time to time any or all
of the assets of the Fund to any common, commingled, or collective trust fund
created by the Trustee in which the Fund is eligible to participate, subject to
all of the provisions thereof, to be commingled with the assets of other trusts
participating therein; and
(b) To
purchase shares in any investment company registered under the Investment
Company Act of 1940,
15 U.S.C.
80a-1 et seq., including one which may be
created, managed, underwritten, or to which investment advice is rendered or
the shares of which are sold by the Trustee. The Trustee may vote such shares
in its discretion.
Section
8.Express Powers of Trustee. Without in any way limiting the
powers and discretions conferred upon the Trustee by the other provisions of
this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depositary even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depositary with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuation. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the appropriate Director a statement confirming the value of the Trust. Any
securities in the Fund shall be valued at market value as of no more than 60
days prior to the anniversary date of establishment of the Fund. The failure of
the Grantor to object in writing to the Trustee within 90 days after the
statement has been furnished to the Grantor and the Director shall constitute a
conclusively binding assent by the Grantor, barring the Grantor from asserting
any claim or liability against the Trustee with respect to matters disclosed in
the statement.
Section 11. Advice
of Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 12.
Trustee Compensation. The Trustee shall be entitled to reasonable compensation
for its services as agreed upon in writing from time to time with the Grantor.
Section 13. Successor Trustee. The
Trustee may resign or the Grantor may replace the Trustee, but such resignation
or replacement shall not be effective until the Grantor has appointed a
successor trustee and this successor accepts the appointment. The successor
trustee shall have the same powers and duties as those conferred upon the
Trustee hereunder. Upon the successor trustee's acceptance of the appointment,
the Trustee shall assign, transfer, and pay over to the successor trustee the
funds and properties then constituting the Fund. If for any reason the Grantor
cannot or does not act in the event of the resignation of the Trustee, the
Trustee may apply to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. The successor trustee shall specify the
date on which it assumes administration of the trust in a writing sent to the
Grantor, the Director, and the present Trustee by certified mail 10 days before
such change becomes effective. Any expenses incurred by the Trustee as a result
of any of the acts contemplated by this Section shall be paid as provided in
Section 9.
Section 14.
Instructions to the Trustee. All orders, requests, and instructions by the
Grantor to the Trustee shall be in writing, signed by such persons as are
designated in the attached Exhibit A or such other designees as the Grantor may
designate by amendment to Exhibit A. The Trustee shall be fully protected in
acting without inquiry in accordance with the Grantor's orders, requests, and
instructions. All orders, requests, and instructions by the Director to the
Trustee shall be in writing, signed by the Director, and the Trustee shall act
and shall be fully protected in acting in accordance with such orders,
requests, and instructions. The Trustee shall have the right to assume, in the
absence of written notice to the contrary, that no event constituting a change
or a termination of the authority of any person to act on behalf of the Grantor
or EPA hereunder has occurred. The Trustee shall have no duty to act in the
absence of such orders, requests, and instructions from the Grantor and/or the
Director, except as provided for herein.
Section 15. Notice of Nonpayment. The Trustee
shall notify the Grantor and the Director and the appropriate Regional
Administrator(s), by certified mail within 10 days following the expiration of
the 30-day period after the anniversary of the establishment of the Trust, if
no payment is received from the Grantor during that period. After the pay-in
period is completed, the Trustee shall not be required to send a notice of
nonpayment.
Section 16. Amendment
of Agreement. This Agreement may be amended by an instrument in writing
executed by the Grantor, the Trustee, and the Director, or by the Trustee and
the Director if the Grantor ceases to exist.
Section 17.Irrevocability and Termination.
Subject to the right of the parties to amend this Agreement as provided in
Section 16, this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the Director, or by
the Trustee and the Director, if the Grantor ceases to exist. Upon termination
of the Trust, all remaining trust property, less final trust administration
expenses, shall be delivered to the Grantor.
Section 18. Immunity and Indemnification. The
Trustee shall not incur personal liability of any nature in connection with any
act or omission, made in good faith, in the administration of this Trust, or in
carrying out any directions by the Grantor or the Director issued in accordance
with this Agreement. The Trustee shall be indemnified and saved harmless by the
Grantor or from the Trust Fund, or both, from and against any personal
liability to which the Trustee may be subjected by reason of any act or conduct
in its official capacity, including all expenses reasonably incurred in its
defense in the event the Grantor fails to provide such defense.
Section 19. Choice of Law. This Agreement
shall be administered, construed, and enforced according to the laws of the
State of Utah.
Section 20.
Interpretation. As used in this Agreement, words in the singular include the
plural and words in the plural include the singular. The descriptive headings
for each section of this Agreement shall not affect the interpretation or the
legal efficacy of this Agreement.
In Witness Whereof the parties have caused this Agreement to
be executed by their respective officers duly authorized and their corporate
seals to be hereunto affixed and attested as of the date first above written.
The parties below certify that the wording of this Agreement is identical to
the wording specified in Subsection R315-264-151(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)