Current through August 26, 2024
(1)
(a) A trust agreement for a trust fund, as
specified in s.
NR 661.0143(1) shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Trust Agreement
Trust Agreement, the "Agreement," entered into as of
[date] by and between [name of the owner or operator], a [name of State]
[insert "corporation," "partnership," "association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert "incorporated in the State
of -----" or "a national bank"], the "Trustee."
Whereas, the Wisconsin Department of Natural Resources,
"the department," has established certain regulations applicable to the
Grantor, requiring that an owner or operator of a facility regulated under ch.
NR 664, or 665, Wis. Adm. Code, or satisfying the conditions of the exclusion
under s.
NR 661.0004(1) (x), Wis. Adm. Code,
shall provide assurance that funds will be available if needed for care of the
facility under subch. G of ch. NR 664 or subch. G of ch. NR 665, Wis. Adm. Code
as applicable,
Whereas, the Grantor has elected to establish a trust to
provide all or part of such financial assurance for the facilities identified
herein,
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee,
Now, Therefore, the Grantor and the Trustee agree as
follows:
Section 1.
Definitions. As used in this Agreement:
(a) The term "Grantor" means the owner or
operator who enters into this Agreement and any successors or assigns of the
Grantor.
(b) The term "Trustee"
means the Trustee who enters into this Agreement and any successor
Trustee.
Section 2.
Identification of Facilities and Cost Estimates. This
Agreement pertains to the facilities and cost estimates identified on attached
Schedule A [on Schedule A, for each facility list the EPA Identification Number
(if available), name, address, and the current cost estimates, or portions
thereof, for which financial assurance is demonstrated by this
Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a
trust fund, the "Fund," for the benefit of the department in the event that the
hazardous secondary material of the grantor no longer meet the conditions of
the exclusion under s.
NR 661.0004(1) (x), Wis. Adm. Code. 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 may 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.
Section
4.
Payments from the Fund. The Trustee shall
make payments from the Fund as the department shall direct, in writing, to
provide for the payment of the costs of the performance of activities required
under subch. G of ch. NR 664 or subch. G of ch. NR 665, Wis. Adm. Code, for the
facilities covered by this Agreement. The Trustee shall reimburse the Grantor
or other persons as specified by the department from the Fund for expenditures
for such activities in such amounts as the beneficiary shall direct in writing.
In addition, the Trustee shall refund to the Grantor such amounts as the depart
specifies in writing. Upon refund, such funds shall no longer constitute part
of the Fund as defined herein.
Section
5.
Payments Comprising the Fund. Payments made
to the Trustee for the Fund shall consist of cash or securities acceptable to
the Trustee.
Section 6.
Trustee Management. The Trustee shall invest and reinvest the
principal and income of the Fund and keep the Fund invested as a single fund,
without distinction between principal and income, in accordance with general
investment policies and guidelines which the Grantor may communicate in writing
to the Trustee from time to time, subject, however, to the provisions of this
section. In investing, reinvesting, exchanging, selling, and managing the Fund,
the Trustee shall discharge the 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:
(a) 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 USC
80a-2.(a), may not be acquired or held,
unless they are securities or other obligations of the Federal or a State
government;
(b) 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
(c) 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 USC
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 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.
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 may 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 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 department to the Trustee shall
be in writing, signed by department, or their designees, and the Trustee shall
act and shall be fully protected in acting in accordance with such orders,
requests, and instructions. The Trustee shall have the right to assume, in the
absence of written notice to the contrary, that no event constituting a change
or a termination of the authority of any person to act on behalf of the Grantor
or the 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.
Section 15.
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.
Section 16.
Irrevocability and
Termination. Subject to the right of the parties to amend this
Agreement as provided in Section 16, this Trust shall be irrevocable and shall
continue until terminated at the written agreement of the Grantor, the Trustee,
and the 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.
Section 17.
Immunity and Indemnification. The Trustee may 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.
Section 18.
Choice of Law.
This Agreement shall be administered, construed, and enforced according to the
laws of the State of Wisconsin.
Section
19.
Interpretation. As used in this Agreement,
words in the singular include the plural and words in the plural include the
singular. The descriptive headings for each Section of this Agreement may 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 s. NR 661.0151(1) (a), Wis. Adm. Code, as such
regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(b) The following is an example of the
certification of acknowledgment that shall accompany the trust agreement for a
trust fund as specified in s.
NR 661.0143(1).
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]
(2) A surety bond guaranteeing payment into a
trust fund, as specified in s.
NR 661.0143(2), shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Financial Guarantee Bond
Date bond executed:
Effective date:
Principal: [legal name and business address of owner or
operator]
Type of Organization: [insert "individual," "joint
venture," "partnership," or "corporation"]
State of incorporation:
Surety(ies): [name(s) and business address(es)]
EPA Identification Number, name, address and amount(s) for
each facility guaranteed by this bond:
Total penal sum of bond: $
Surety's bond number:
Know All Persons By These Presents, That we, the Principal
and Surety(ies) are firmly bound to the Wisconsin Department of Natural
Resources in the event that the hazardous secondary material at the reclamation
or intermediate facility listed below no longer meet the conditions of the
exclusion under s.
NR 661.0004(1) (x), Wis. Adm. Code, 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 Resource
Conservation and Recovery Act as amended (RCRA), to have a permit or interim
status in order to own or operate each facility identified above, or to meet
conditions under s.
NR 661.0004(1) (x), Wis. Adm. Code,
and
Whereas, said Principal is required to provide financial
assurance as a condition of permit or interim status or as a condition of an
exclusion under s.
NR 661.0004(1) (x), Wis. Adm. Code,
and
Whereas, said Principal shall establish a standby trust
fund as is required when a surety bond is used to provide such financial
assurance;
Now, Therefore, the conditions of the obligation are such
that if the Principal shall faithfully, before the beginning of final closure
of each facility identified above, fund the standby trust fund in the amount(s)
identified above for the facility,
Or, if the Principal shall satisfy all the conditions
established for exclusion of hazardous secondary material from coverage as
solid waste under s.
NR 661.0004(1) (x), Wis. Adm.
Code.
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 a U.S. district court or other court of competent
jurisdiction,
Or, if the Principal shall provide alternate financial
assurance, as specified in subch. H of ch. NR 661, Wis. Adm. Code, 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.
The liability of the Surety(ies) may 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 may 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 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 s. NR 661.0151(2), Wis. Adm. Code, 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: $
(3) A letter of credit, as specified in s.
NR 661.0143(3), shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted.
Irrevocable Standby Letter of Credit
[Address to Wisconsin Department of Natural
Resources]
Dear Sir or Madam: We hereby establish our Irrevocable
Standby Letter of Credit No.____ in your favor, in the event that the hazardous
secondary material at the covered reclamation or intermediary facility(ies) no
longer meet the conditions of the exclusion under s.
NR 661.0004(1) (x), Wis. Adm. Code, 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 Resource Conservation and Recovery Act of 1976 as
amended."
This letter of credit is effective as of [date] and shall
expire on [date at least 1 year later], but such expiration date shall be
automatically extended for a period of [at least 1 year] on [date] and on each
successive expiration date, unless, at least 120 days before the current
expiration date, we notify both you 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 s. NR 661.0151(3), Wis. Adm. Code, 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"].
(4) A
certificate of insurance, as specified in s.
NR 661.0143(5), shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Certificate of Insurance
Name and Address of Insurer (herein called the
"Insurer"):
Name and Address of Insured (herein called the
"Insured"):
Facilities Covered: [List for each facility: The EPA
Identification Number (if any issued), name, address, and the amount of
insurance for all facilities covered, which shall total the face amount shown
below.]
Face Amount:
Policy Number:
Effective Date:
The Insurer hereby certifies that it has issued to the
Insured the policy of insurance identified above to provide financial assurance
so that in accordance with applicable regulations all hazardous secondary
material can be removed from the facility or any unit at the facility and the
facility or any unit at the facility can be decontaminated at the facilities
identified above. The Insurer further warrants that such policy conforms in all
respects with the requirements of s.
NR 661.0143(4), Wis. Adm. Code, as
applicable and as such regulations were constituted on the date shown
immediately below. It is agreed that any provision of the policy inconsistent
with such regulations is hereby amended to eliminate such inconsistency.
Whenever requested by the Wisconsin Department of Natural
Resources, the Insurer agrees to furnish to the department a duplicate original
of the policy listed above, including all endorsements thereon.
I hereby certify that the wording of this certificate is
identical to the wording specified in s. NR 661.0151(4), Wis. Adm. Code, 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]
(5) A letter from the chief financial
officer, as specified in s.
NR 661.0143(5), shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Letter from Chief Financial Officer
[Address to Wisconsin Department of Natural
Resources]
I am the chief financial officer of [name and address of
firm]. This letter is in support of this firm's use of the financial test to
demonstrate financial assurance, as specified in subch. H of ch. NR 661, Wis.
Adm. Code.
[Fill out the following nine paragraphs regarding
facilities and associated cost estimates. If your firm has no facilities that
belong in a particular paragraph, write "None" in the space indicated. For each
facility, include its EPA Identification Number (if any issued), name, address,
and current cost estimates.]
1. This
firm is the owner or operator of the following facilities for which financial
assurance is demonstrated through the financial test specified in subch. H of
ch. NR 661, Wis. Adm. Code. The current cost estimates covered by the test are
shown for each facility: ____.
2.
This firm guarantees, through the guarantee specified in subch. H of ch. NR
661, Wis. Adm. Code, the following facilities owned or operated by the
guaranteed party. The current cost estimates so guaranteed are shown for each
facility: ____. The firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee____, or
(3) engaged in the following substantial
business relationship with the owner or operator ____, and receiving the
following value in consideration of this guarantee____]. [Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter].
3. In States where EPA is not administering
the financial requirements of subch. H of ch. NR 661, Wis. Adm. Code, this
firm, as owner or operator or guarantor, is demonstrating financial assurance
for the following facilities through the use of a test equivalent or
substantially equivalent to the financial test specified in subch. H of ch. NR
661, Wis. Adm. Code. The current cost estimates covered by such a test are
shown for each facility:____.
4.
This firm is the owner or operator of the following hazardous secondary
material management facilities for which financial assurance is not
demonstrated either to EPA or a State through the financial test or any other
financial assurance mechanism specified in subch. H of ch. NR 661, Wis. Adm.
Code, or equivalent or substantially equivalent State mechanisms. The current
cost estimates not covered by such financial assurance are shown for each
facility:____.
5. This firm is the
owner or operator of the following underground injection control facilities for
which financial assurance for plugging and abandonment is required under part
144. The current closure cost estimates as required by
40 CFR
144.62 are shown for each
facility:____.
6. This firm is the
owner or operator of the following facilities for which financial assurance for
closure or post-closure care is demonstrated through the financial test
specified in subch. H of ch. NR 664 and subch. H of ch. NR 665, Wis. Adm. Code.
The current closure and/or post-closure cost estimates covered by the test are
shown for each facility: ____.
7.
This firm guarantees, through the guarantee specified in subch. H of ch. NR 664
and subch. H of ch. NR 665, Wis. Adm. Code, the closure or post-closure care of
the following facilities owned or operated by the guaranteed party. The current
cost estimates for the closure or post-closure care so guaranteed are shown for
each facility: ____. The firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee; or
(3) engaged in the following substantial
business relationship with the owner or operator __, and receiving the
following value in consideration of this guarantee __]. [Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter].
8. In States where EPA is not administering
the financial requirements of subch. H of ch. NR 664 or subch. H of ch. NR 665,
Wis. Adm. Code, this firm, as owner or operator or guarantor, is demonstrating
financial assurance for the closure or post-closure care of the following
facilities through the use of a test equivalent or substantially equivalent to
the financial test specified in subch. H of ch. NR 664 and subch. H of ch. NR
665, Wis. Adm. Code,, Wis. Adm. Code. The current closure and/or post-closure
cost estimates covered by such a test are shown for each facility:
__.
9. This firm is the owner or
operator of the following hazardous waste management facilities for which
financial assurance for closure or, if a disposal facility, post-closure care,
is not demonstrated either to EPA or a State through the financial test or any
other financial assurance mechanism specified in subch. H of ch. NR 664 or
subch. H of ch. NR 665, Wis. Adm. Code, or equivalent or substantially
equivalent State mechanisms. The current closure and/or post-closure cost
estimates not covered by such financial assurance are shown for each facility:
__.
This firm [insert "is required" or "is not required"] to
file a Form 10K with the Securities and Exchange Commission (SEC) for the
latest fiscal year.
The fiscal year of this firm ends on [month, day]. The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended [date].
[Fill in Alternative I if the criteria of sub. (5) (a) 1.
of s.
NR 661.0143, Wis. Adm. Code, are used. Fill in
Alternative II if the criteria of sub. (5) (a) 2. of s.
NR 661.0143, Wis. Adm. Code, are used.]
ALTERNATIVE I
1.
Sum of current cost estimates [total of all cost estimates shown in the nine
paragraphs above] $__
* 2. Total
liabilities [if any portion of the cost estimates is included in total
liabilities, you may deduct the amount of that portion from this line and add
that amount to lines 3 and 4] $__
*
3. Tangible net worth $____
*
4. Net worth $____-
*
5. Current assets $____
*
6. Current liabilities $____
7. Net working capital [line 5 minus line 6]
$____
* 8. The sum of net income
plus depreciation, depletion, and amortization $____-
*
9. Total assets in U.S. (required only if less than
90% of firm's assets are located in the U.S.) $____-
10. Is line 3 at least $10 million? (Yes/No)
____
11. Is line 3 at least 6 times
line 1? (Yes/No) ____-
12. Is line
7 at least 6 times line 1? (Yes/No) ____-
*
13. Are at least 90% of firm's assets located in the
U.S.? If not, complete line 14 (Yes/No) ____
14. Is line 9 at least 6 times line 1?
(Yes/No) ____-
15. Is line 2
divided by line 4 less than 2.0? (Yes/No) ____-
16. Is line 8 divided by line 2 greater than
0.1? (Yes/No) ____-
17. Is line 5
divided by line 6 greater than 1.5? (Yes/No) ____-
ALTERNATIVE II
1.
Sum of current cost estimates [total of all cost estimates shown in the eight
paragraphs above] $____-
2. Current
bond rating of most recent issuance of this firm and name of rating service
____-
3. Date of issuance of bond
____-
4. Date of maturity of bond
____-
* 5. Tangible net worth [if
any portion of the cost estimates is included in "total liabilities" on your
firm's financial statements, you may add the amount of that portion to this
line] $____-
* 6. Total assets in
U.S. (required only if less than 90% of firm's assets are located in the U.S.)
$____-
7. Is line 5 at least $10
million? (Yes/No) ____
8. Is line 5
at least 6 times line 1? (Yes/No) ____
*
9. Are at least 90% of firm's assets located in the
U.S.? If not, complete line 10 (Yes/No) ____
10. Is line 6 at least 6 times line 1?
(Yes/No) ____-
I hereby certify that the wording of this letter is
identical to the wording specified in s. NR 661.0151(5), Wis. Adm. Code, as
such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
(6) A letter from the chief financial
officer, as specified in s.
NR 661.0147(6), shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Letter from Chief Financial Officer
[Address to Wisconsin Department of Natural
Resources]
I am the chief financial officer of [firm's name and
address]. This letter is in support of the use of the financial test to
demonstrate financial responsibility for liability coverage under s.
NR 661.0147, Wis. Adm. Code, [insert "and costs assured
s.
NR 661.0143(5), Wis. Adm. Code," if
applicable] as specified in subch. H of ch. NR 661, Wis. Adm. Code.
[Fill out the following paragraphs regarding facilities
and liability coverage. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include its
EPA Identification Number (if any issued), name, and address.]
The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert "sudden" or
"non-sudden" or "both sudden and non-sudden"] accidental occurrences is being
demonstrated through the financial test specified in subch. H of ch. NR 661,
Wis. Adm. Code:____
The firm identified above guarantees, through the
guarantee specified in subch. H of ch. NR 661, Wis. Adm. Code, liability
coverage for [insert "sudden" or "non-sudden" or "both sudden and non-sudden"]
accidental occurrences at the following facilities owned or operated by the
following: ____-. The firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee -____; or
(3) engaged in the following substantial
business relationship with the owner or operator ____-, and receiving the
following value in consideration of this guarantee ____-]. [Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter.]
The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert "sudden" or
"non-sudden" or "both sudden and non-sudden"] accidental occurrences is being
demonstrated through the financial test specified in subch. H of ch. NR 664 and
subch. H of ch. NR 665, Wis. Adm. Code:____
The firm identified above guarantees, through the
guarantee specified in subch. H of ch. NR 664 and subch. H of ch. NR 665, Wis.
Adm. Code, liability coverage for [insert "sudden" or "non-sudden" or "both
sudden and non-sudden"] accidental occurrences at the following facilities
owned or operated by the following: __. The firm identified above is [insert
one or more:
(1) The direct or
higher-tier parent corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee __; or
(3) engaged in the following substantial
business relationship with the owner or operator __, and receiving the
following value in consideration of this guarantee __]. [Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter.]
[If you are using the financial test to demonstrate
coverage of both liability and costs assured under s.
NR 661.0143(5), Wis. Adm. Code, or
closure or post-closure care costs under s.
NR 664.0143, 664.0145, 665.0143 or 665.0145, Wis. Adm.
Code, fill in the following nine paragraphs regarding facilities and associated
cost estimates. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include its
EPA identification number (if any issued), name, address, and current cost
estimates.]
[If you are using the financial test to demonstrate
coverage of both liability and costs assured under s.
NR 661.0143(5), Wis. Adm. Code, or
closure or post-closure care costs under s.
NR 664.0143, 664.0145, 665.0143 or 665.0145, Wis. Adm.
Code, fill in the following nine paragraphs regarding facilities and associated
cost estimates. If there are no facilities that belong in a particular
paragraph, write "None" in the space indicated. For each facility, include its
EPA identification number (if any issued), name, address, and current cost
estimates.]
1. This firm is the owner
or operator of the following facilities for which financial assurance is
demonstrated through the financial test specified in subch. H of ch. NR 661,
Wis. Adm. Code. The current cost estimates covered by the test are shown for
each facility:____.
2. This firm
guarantees, through the guarantee specified in subch. H of ch. NR 661, Wis.
Adm. Code, the following facilities owned or operated by the guaranteed party.
The current cost estimates so guaranteed are shown for each facility:____. The
firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2) owned by the same parent corporation as
the parent corporation of the owner or operator, and receiving the following
value in consideration of this guarantee____, or
(3) engaged in the following substantial
business relationship with the owner or operator ____, and receiving the
following value in consideration of this guarantee____]. [Attach a written
description of the business relationship or a copy of the contract establishing
such relationship to this letter].
3. In States where EPA is not administering
the financial requirements of subch. H of ch. NR 661, Wis. Adm. Code, this
firm, as owner or operator or guarantor, is demonstrating financial assurance
for the following facilities through the use of a test equivalent or
substantially equivalent to the financial test specified in subch. H of ch. NR
661, Wis. Adm. Code. The current cost estimates covered by such a test are
shown for each facility:____.
4.
This firm is the owner or operator of the following hazardous secondary
material management facilities for which financial assurance is not
demonstrated either to EPA or a State through the financial test or any other
financial assurance mechanism specified in subch. H of ch. NR 661, Wis. Adm.
Code, or equivalent or substantially equivalent State mechanisms. The current
cost estimates not covered by such financial assurance are shown for each
facility:____.
5. This firm is the
owner or operator of the following underground injection control facilities for
which financial assurance for plugging and abandonment is required under 40 CFR
part 144 . The current closure cost estimates as required by
40 CFR
144.62 are shown for each
facility:____.
6. This firm is the
owner or operator of the following facilities for which financial assurance for
closure or post-closure care is demonstrated through the financial test
specified in subch. H of ch. NR 664 and subch. H of ch. NR 665, Wis. Adm. Code.
The current closure and/or post-closure cost estimates covered by the test are
shown for each facility: ____.
7.
This firm guarantees, through the guarantee specified in subch. H of ch. NR 664
and subch. H of ch. NR 665, the closure or post-closure care of the following
facilities owned or operated by the guaranteed party. The current cost
estimates for the closure or post-closure care so guaranteed are shown for each
facility: ____. The firm identified above is [insert one or more:
(1) The direct or higher-tier parent
corporation of the owner or operator;
(2)
owned by the same parent corporation as the parent corporation of
the owner or operator, and receiving the following value in consideration of
this guarantee ____; or
(3) engaged
in the following substantial business relationship with the owner or operator
____, and receiving the following value in consideration of this guarantee
____.]
[Attach a written description of the business relationship
or a copy of the contract establishing such relationship to this
letter].
8. In
States where EPA is not administering the financial requirements of subch. H of
ch. NR 664 or subch. H of ch. NR 665, this firm, as owner or operator or
guarantor, is demonstrating financial assurance for the closure or post-closure
care of the following facilities through the use of a test equivalent or
substantially equivalent to the financial test specified in subch. H of ch. NR
664 and subch. H of ch. NR 665. The current closure and/or post-closure cost
estimates covered by such a test are shown for each facility: ____.
9. This firm is the owner or operator of the
following hazardous waste management facilities for which financial assurance
for closure or, if a disposal facility, post-closure care, is not demonstrated
either to EPA or a State through the financial test or any other financial
assurance mechanism specified in subch. H of ch. NR 664 and subch. H of ch. NR
665 or equivalent or substantially equivalent State mechanisms. The current
closure and/or post-closure cost estimates not covered by such financial
assurance are shown for each facility: ____.
This firm [insert "is required" or "is not required"] to
file a Form 10K with the Securities and Exchange Commission (SEC) for the
latest fiscal year.
The fiscal year of this firm ends on [month, day]. The
figures for the following items marked with an asterisk are derived from this
firm's independently audited, year-end financial statements for the latest
completed fiscal year, ended [date].
Part A. Liability Coverage for Accidental
Occurrences
[Fill in Alternative I if the criteria of sub. (6) (a) 1.
of s.
NR 661.0147, Wis. Adm. Code, are used. Fill in
Alternative II if the criteria of sub. (6) (a) 2. of s.
NR 661.0147, Wis. Adm. Code, are used.]
ALTERNATIVE I
1.
Amount of annual aggregate liability coverage to be demonstrated
$____-.
* 2. Current assets
$____-.
* 3. Current liabilities
$____-.
4. Net working capital
(line 2 minus line 3) $____-.
* 5.
Tangible net worth $____-.
* 6. If
less than 90% of assets are located in the U.S., give total U.S. assets
$____-.
7. Is line 5 at least $10
million? (Yes/No) ____-.
8. Is line
4 at least 6 times line 1? (Yes/No) ____-.
9. Is line 5 at least 6 times line 1?
(Yes/No) ____-.
* 10. Are at least
90% of assets located in the U.S.? (Yes/No) ____. If not, complete line
11.
11. Is line 6 at least 6 times
line 1? (Yes/No) ____.
ALTERNATIVE II
1.
Amount of annual aggregate liability coverage to be demonstrated
$____-.
2. Current bond rating of
most recent issuance and name of rating service ____-____-.
3. Date of issuance of bond
________-.
4. Date of maturity of
bond ________-.
* 5. Tangible net
worth $____-.
* 6. Total assets in
U.S. (required only if less than 90% of assets are located in the U.S.)
$____-.
7. Is line 5 at least $10
million? (Yes/No) ____-.
8. Is line
5 at least 6 times line 1? ____-.
9. Are at least 90% of assets located in the
U.S.? If not, complete line 10. (Yes/No) __
10. Is line 6 at least 6 times line 1? ____-.
[Fill in part B if you are using the financial test to
demonstrate assurance of both liability coverage and costs assured under s.
NR 661.0143(5) or closure or
post-closure care costs under s.
NR 664.0143, 664.0145, 665.0143 or 665.0145, Wis. Adm.
Code.]
Part B. Facility Care and Liability Coverage
[Fill in Alternative I if the criteria of subs. (5) (a) 1.
of s.
NR 661.0143 and (6) (a) 1. of s.
NR 661.0147 are used. Fill in Alternative II if the
criteria of subs. (5) (a) 2. of s.
NR 661.0143 and (6) (a) 2. of s.
NR 661.0147, Wis. Adm. Code are used.]
ALTERNATIVE I
1.
Sum of current cost estimates (total of all cost estimates listed above)
$____-
2. Amount of annual
aggregate liability coverage to be demonstrated $____-
3. Sum of lines 1 and 2 $____
* 4. Total liabilities (if any portion of
your cost estimates is included in your total liabilities, you may deduct that
portion from this line and add that amount to lines 5 and 6) $____-
* 5. Tangible net worth $____
* 6. Net worth $____-
*
7. Current assets $____
*
8. Current liabilities $____
9. Net working capital (line 7 minus line 8)
$____
* 10. The sum of net income
plus depreciation, depletion, and amortization $____-
*
11. Total assets in U.S. (required only if less than
90% of assets are located in the U.S.) $____
12. Is line 5 at least $10 million?
(Yes/No)
13. Is line 5 at least 6
times line 3? (Yes/No)
14. Is line
9 at least 6 times line 3? (Yes/No)
*
15. Are at least 90% of assets located in the U.S.?
(Yes/No) If not, complete line 16.
16. Is line 11 at least 6 times line 3?
(Yes/No)
17. Is line 4 divided by
line 6 less than 2.0? (Yes/No)
18.
Is line 10 divided by line 4 greater than 0.1? (Yes/No)
19. Is line 7 divided by line 8 greater than
1.5? (Yes/No)
ALTERNATIVE II
1.
Sum of current cost estimates (total of all cost estimates listed above)
$____-
2. Amount of annual
aggregate liability coverage to be demonstrated $____-
3. Sum of lines 1 and 2 $____
4. Current bond rating of most recent
issuance and name of rating service ______-
5. Date of issuance of bond ______-
6. Date of maturity of bond ______-
* 7. Tangible net worth (if any portion of
the cost estimates is included in "total liabilities" on your financial
statements you may add that portion to this line) $____-
*
8. Total assets in the U.S. (required only if less
than 90% of assets are located in the U.S.) $____-
9. Is line 7 at least $10 million?
(Yes/No)
10. Is line 7 at least 6
times line 3? (Yes/No)
* 11. Are at
least 90% of assets located in the U.S.? (Yes/No) If not complete line
12.
12. Is line 8 at least 6 times
line 3? (Yes/No)
I hereby certify that the wording of this letter is
identical to the wording specified in s. NR 661.0151(6), Wis. Adm. Code, as
such regulations were constituted on the date shown immediately below.
[Signature]
[Name]
[Title]
[Date]
(7)
(a) A
corporate guarantee, as specified in s.
NR 661.0143(5) shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Corporate Guarantee for Facility Care
Guarantee made this [date] by [name of guaranteeing
entity], a business corporation organized under the laws of the State of
[insert name of State], herein referred to as guarantor. This guarantee is made
on behalf of the [owner or operator] of [business address], which is [one of
the following: "our subsidiary"; " a subsidiary of [name and address of common
parent corporation], of which guarantor is a subsidiary"; or "an entity with
which guarantor has a substantial business relationship, as defined in ss.
NR 664.0141(8) and 665.0141(8), Wis.
Adm. Code" 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 s.
NR 661.0143(5), Wis. Adm.
Code.
2. [Owner or operator] owns
or operates the following facility(ies) covered by this guarantee: [List for
each facility: EPA Identification Number (if any issued), name, and
address.
3. "Closure plans" as used
below refer to the plans maintained as required by subch. H of ch. NR 661, Wis.
Adm. Code, for the care of facilities as identified above.
4. For value received from [owner or
operator], guarantor guarantees that in the event of a determination by the
department that the hazardous secondary material at the owner or operator's
facility covered by this guarantee do not meet the conditions of the exclusion
under s.
NR 661.0004(1) (x), Wis. Adm. Code, the
guarantor will dispose of any hazardous secondary material as hazardous waste,
and close the facility in accordance with closure requirements found in ch. NR
664 or 665, Wis. Adm. Code, as applicable, or establish a trust fund as
specified in s.
NR 661.0143(1), Wis. Adm. Code, in the
name of the owner or operator in the amount of the current cost
estimate.
5. Guarantor agrees that
if, at the end of any fiscal year before termination of this guarantee, the
guarantor fails to meet the financial test criteria, guarantor shall send
within 90 days, by certified mail, notice to the department 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 subch. H of
ch. NR 661, Wis. Adm. Code, 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.
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 financial assurance as specified in ch.
NR 664, 665, or subch. H of ch. NR 661, Wis. Adm. Code, as applicable, in the
name of [owner or operator] unless [owner or operator] has done so.
8. Guarantor agrees to remain bound under
this guarantee notwithstanding any or all of the following: amendment or
modification of the closure plan, the extension or reduction of the time of
performance, or any other modification or alteration of an obligation of the
owner or operator pursuant to ch. NR 664, 665, or subch. H of ch. NR 661, Wis.
Adm. Code.
9. Guarantor agrees to
remain bound under this guarantee for as long as [owner or operator] shall
comply with the applicable financial assurance requirements of chs.
NR 664 and 665, Wis. Adm. Code, or
the financial assurance condition of s.
NR 661.0004(1) (x) 6. f., Wis. Adm.
Code, for the above-listed facilities, except as provided in paragraph 10 of
this agreement.
10. [Insert the
following language if the guarantor is (a) a direct or higher-tier corporate
parent, or (b) a firm whose parent corporation is also the parent corporation
of the owner or operator]:
Guarantor may terminate this guarantee by sending notice
by certified mail to the 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(s), alternate coverage complying with s.
NR 661.0143, Wis. Adm. Code.
[Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its "substantial business relationship" with
the owner or operator]
Guarantor may terminate this guarantee 120 days following
the receipt of notification, through certified mail, by the department and by
[the owner or operator].
11.
Guarantor agrees that if [owner or operator] fails to provide alternate
financial assurance as specified in chs.
NR 664, 665, or subch. H of s. NR
661, Wis. Adm. Code, 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 or from guarantor, guarantor shall
provide such alternate financial assurance in the name of [owner or
operator].
12. Guarantor expressly
waives notice of acceptance of this guarantee by the department or by [owner or
operator]. Guarantor also expressly waives notice of amendments or
modifications of the closure plan and of amendments or modifications of the
applicable requirements of chs.
NR 664, 665, or subch. H of ch. NR
661, Wis. Adm. Code.
I hereby certify that the wording of this guarantee is
identical to the wording specified in s. NR 661.0151(7) (a), Wis. Adm. Code, 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:
(b) A guarantee, as specified in
s.
NR 661.0147(7) shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Guarantee for Liability Coverage
Guarantee made this [date] by [name of guaranteeing
entity], a business corporation organized under the laws of [if incorporated
within the United States insert "the State of ____-" and insert name of State;
if incorporated outside the United States insert the name of the country in
which incorporated, the principal place of business within the United States,
and the name and address of the registered agent in the State of the principal
place of business], herein referred to as guarantor. This guarantee is made on
behalf of [owner or operator] of [business address], which is one of the
following: "our subsidiary;" "a subsidiary of [name and address of common
parent corporation], of which guarantor is a subsidiary;" or "an entity with
which guarantor has a substantial business relationship, as defined in s. NR
[either 664.0141 (8) or 665.0141 (8)], Wis. Adm. Code," to any and all third
parties who have sustained or may sustain bodily injury or property damage
caused by [sudden and/or non-sudden] 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 s.
NR 661.0147(7), Wis. Adm.
Code.
2. [Owner or operator] owns
or operates the following facility(ies) covered by this guarantee: [List for
each facility: EPA identification number (if any issued), name, and address;
and if guarantor is incorporated outside the United States list the name and
address of the guarantor's registered agent in each State.] This corporate
guarantee satisfies RCRA third-party liability requirements for [insert
"sudden" or "non-sudden" or "both sudden and non-sudden"] 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 non-sudden] accidental occurrences arising from
operations of the facility(ies) covered by this guarantee that in the event
that [owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to third
parties caused by [sudden and/or non-sudden] 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 shall pay damages because of the injury to persons
identified in subs. (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 s.
NR 661.0147, Wis. Adm. Code, 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. 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 s.
NR 661.0147, Wis. Adm. Code, in the name of [owner or
operator], unless [owner or operator] has done so.
7. Guarantor reserves the right to modify
this agreement to take into account amendment or modification of the liability
requirements set by s.
NR 661.0147, Wis. Adm. Code, provided that such
modification shall become effective only if a department does not disapprove
the modification within 30 days of receipt of notification of the
modification.
8. Guarantor agrees
to remain bound under this guarantee for so long as [owner or operator] shall
comply with the applicable requirements of s.
NR 661.0147, Wis. Adm. Code, for the above-listed
facility(ies), except as provided in paragraph 10 of this agreement.
9. [Insert the following language if the
guarantor is (a) a direct or higher-tier corporate parent, or (b) a firm whose
parent corporation is also the parent corporation of the owner or
operator]:
10. Guarantor may
terminate this guarantee by sending notice by certified mail to the 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 approves,
alternate liability coverage complying with s.
NR 661.0147, Wis. Adm. Code.
[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 shall be worded as follows, except that instructions in brackets
are to be replaced with the relevant information and the brackets deleted:
CERTIFICATION OF VALID CLAIM
The undersigned, as 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 non-sudden]
accidental occurrence arising from operating [Principal's] facility should be
paid in the amount of $ _______.
[Signatures] _______
Principal _______
(Notary) Date _______
[Signatures] _______
Claimant(s) _______
(Notary) Date _______
(b) A valid final court order establishing a
judgment against the Principal for bodily injury or property damage caused by
sudden or non-sudden 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 the guarantee is
identical to the wording specified in s. NR 661.0151(7) (b), Wis. Adm. Code, 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:
(8) A hazardous waste
facility liability endorsement as specified in s.
NR 661.0147 shall be worded as follows, except that
instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
Hazardous Secondary Material
Reclamation/Intermediate Facility Liability Endorsement
1. This endorsement certifies that the policy
to which the endorsement is attached provides liability insurance covering
bodily injury and property damage in connection with the insured's obligation
to demonstrate financial responsibility under s.
NR 661.0147, Wis. Adm. Code. The coverage applies at
[list EPA Identification Number (if any issued), name, and address for each
facility] for [insert "sudden accidental occurrences," "non-sudden accidental
occurrences," or "sudden and non-sudden 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 non-sudden 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) to (e) of this Paragraph 2 are hereby amended to conform with
subsections (a) to (e):
(a) Bankruptcy or
insolvency of the insured may 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 s.
NR 661.0147(6), Wis. Adm.
Code.
(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 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 ________, 20__. The effective
date of said policy is ________ day of ________, 20__.
I hereby certify that the wording of this endorsement is
identical to the wording specified in s. NR 661.0151(8), Wis. Adm. Code, 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]
(9) A certificate of liability
insurance as required in s.
NR 661.0147 shall be worded as follows, except that the
instructions in brackets are to be replaced with the relevant information and
the brackets deleted:
HAZARDOUS SECONDARY MATERIAL RECLAMATION/INTERMEDIATE
FACILITY CERTIFICATE OF LIABILITY INSURANCE
1. [Name of Insurer], (the "Insurer"), of
[address of Insurer] hereby certifies that it has issued liability insurance
covering bodily injury and property damage to [name of insured], (the
"insured"), of [address of insured] in connection with the insured's obligation
to demonstrate financial responsibility under chs.
NR 664, 665, and the financial
assurance condition of s.
NR 661.0004(1) (x) 6. f, Wis. Adm. Code.
The coverage applies at [list EPA Identification Number (if any issued), name,
and address for each facility] for [insert "sudden accidental occurrences,"
"non-sudden accidental occurrences," or "sudden and non-sudden 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 non-sudden 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 may 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 s.
NR 661.0147, Wis. Adm. Code.
(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 s. NR 661.0151(9), Wis. Adm. Code, 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]
(10) A letter of credit, as
specified in s.
NR 661.0147(8), shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Irrevocable Standby Letter of Credit
[Name and Address of Issuing Institution]
[Wisconsin Department of Natural Resources]
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
non-sudden 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 non-sudden]
accidental occurrence arising from operations of [principal's] facility should
be paid in the amount of $[ ]. We hereby certify that the claim does not apply
to any of the following:
(a) Bodily
injury or property damage for which [insert principal] is obligated to pay
damages by reason of the assumption of liability in a contract or agreement.
This exclusion does not apply to liability for damages that [insert principal]
would be obligated to pay in the absence of the contract or
agreement.
(b) Any obligation of
[insert principal] under a workers' compensation, disability benefits, or
unemployment compensation law or any similar law.
(c) Bodily injury to:
(1) An employee of [insert principal] arising
from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert principal].
This exclusion applies:
(A) Whether [insert principal] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who shall pay damages because of the injury to persons
identified in subs. (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
non-sudden 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 Wisconsin Department of Natural Resources,
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 s. NR 661.0151(10), Wis. Adm. Code, 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"].
(11) A surety bond, as specified in s.
NR 661.0147(9) shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
PAYMENT BOND
Surety Bond No. [Insert number]
Parties [Insert name and address of owner or operator],
Principal, incorporated in [Insert State of incorporation] of [Insert city and
State of principal place of business] and [Insert name and address of surety
company(ies)], Surety Company(ies), of [Insert surety(ies) place of
business].
EPA Identification Number (if any issued), name, and
address for each facility guaranteed by this bond:
|
Sudden accidental occurrences
|
Non-sudden 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 "non-sudden"] accidental occurrences arising from operations
of the facility or group of facilities in the sums prescribed herein; subject
to the governing provisions and the following conditions.
Governing Provisions:
(1) Section 3004 of the Resource Conservation
and Recovery Act of 1976, as amended.
(2) Rules and regulations of the department
particularly, chs.
NR 664, 665, and subch. H of ch.
NR 661, Wis. Adm. Code (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 "non-sudden"]
accidental occurrences arising from operations of the facility or group of
facilities. Such obligation does not apply to any of the following:
(a) Bodily injury or property damage for
which [insert Principal] is obligated to pay damages by reason of the
assumption of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert Principal] would be obligated to
pay in the absence of the contract or agreement.
(b) Any obligation of [insert Principal]
under a workers' compensation, disability benefits, or unemployment
compensation law or similar law.
(c) Bodily injury to:
(1) An employee of [insert Principal] arising
from, and in the course of, employment by [insert principal]; or
(2) The spouse, child, parent, brother or
sister of that employee as a consequence of, or arising from, and in the course
of employment by [insert Principal]. This exclusion applies:
(A) Whether [insert Principal] may be liable
as an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who shall pay damages because of the injury to persons
identified in subs. (1) and (2).
(d) Bodily injury or property damage arising
out of the ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
(e) Property damage to:
(1) Any property owned, rented, or occupied
by [insert Principal];
(2) Premises
that are sold, given away or abandoned by [insert Principal] if the property
damage arises out of any part of those premises;
(3) Property loaned to [insert
Principal];
(4) Personal property
in the care, custody or control of [insert Principal];
(5) That particular part of real property on
which [insert Principal] or any contractors or subcontractors working directly
or indirectly on behalf of [insert Principal] are performing operations, if the
property damage arises out of these operations.
(2) This bond assures that the Principal will
satisfy valid third-party liability claims, as described in condition
1.
(3) If the Principal fails to
satisfy a valid third-party liability claim, as described above, the
Surety(ies) becomes liable on this bond obligation.
(4) The Surety(ies) shall satisfy a
third-party liability claim only upon the receipt of one of the following
documents:
(a) Certification from the
Principal and the third-party claimant(s) that the liability claim should be
paid. The certification shall be worded as follows, except that instructions in
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
non-sudden] accidental occurrence arising from operating [Principal's] facility
should be paid in the amount of $[ ].
[Signature]
Principal
[Notary] Date
[Signature(s)]
Claimant(s)
[Notary] Date
or (b) A valid final court order establishing a judgment
against the Principal for bodily injury or property damage caused by sudden or
non-sudden 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) may 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 may 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 s. NR 661.0151(11), Wis. Adm. Code, 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: $_______
(12)
(a) A
trust agreement, as specified in s.
NR 661.0147(10) shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Trust Agreement
Trust Agreement, the "Agreement," entered into as of
[date] by and between [name of the owner or operator] a [name of State] [insert
"corporation," "partnership," " association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert, "incorporated in the State
of ____" or "a national bank"], the "trustee."
Whereas, the Wisconsin Department of Natural Resources,
"department," has established certain regulations applicable to the Grantor,
requiring that an owner or operator shall demonstrate financial responsibility
for bodily injury and property damage to third parties caused by sudden
accidental and/or non-sudden accidental occurrences arising from operations of
the facility or group of facilities.
Whereas, the Grantor has elected to establish a trust to
assure all or part of such financial responsibility for the facilities
identified herein.
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions. As
used in this Agreement:
(a) The term
"Grantor" means the owner or operator who enters into this Agreement and any
successors or assigns of the Grantor.
(b) The term "Trustee" means the Trustee who
enters into this Agreement and any successor Trustee.
Section 2. Identification of Facilities. This
agreement pertains to the facilities identified on attached schedule A [on
schedule A, for each facility list the EPA Identification Number (if any
issued), name, and address of the facility(ies) and the amount of liability
coverage, or portions thereof, if more than one instrument affords combined
coverage as demonstrated by this Agreement].
Section 3. Establishment of Fund. The Grantor
and the Trustee hereby establish a trust fund, hereinafter the "Fund," for the
benefit of any and all third parties injured or damaged by [sudden and/or
non-sudden] 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 non-sudden occurrences, except that the Fund is
not established for the benefit of third parties for the following:
(a) Bodily injury or property damage for
which [insert Grantor] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement. This exclusion does not apply to
liability for damages that [insert Grantor] would be obligated to pay in the
absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under
a workers' compensation, disability benefits, or unemployment compensation law
or any similar law.
(c) Bodily
injury to:
(1) An employee of [insert
Grantor] arising from, and in the course of, employment by [insert Grantor];
or
(2) The spouse, child, parent,
brother or sister of that employee as a consequence of, or arising from, and in
the course of employment by [insert Grantor]. This exclusion applies:
(A) Whether [insert Grantor] may be liable as
an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who shall pay damages because of the injury to persons
identified in subs. (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 may 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.
Section 4. Payment for Bodily Injury or
Property Damage. The Trustee shall satisfy a third party liability claim by
making payments from the Fund only upon receipt of one of the following
documents;
(a) Certification from the Grantor
and the third-party claimant(s) that the liability claim should be paid. The
certification shall be worded as follows, except that instructions in 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 non-sudden]
accidental occurrence arising from operating [Grantor's] facility or group of
facilities should be paid in the amount of $[ ].
[Signatures]
Grantor
[Signatures]
Claimant(s)
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or non-sudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of cash or securities
acceptable to the Trustee.
Section
6. Trustee Management. The Trustee shall invest and reinvest the
principal and income, in accordance with general investment policies and
guidelines which the Grantor may communicate in writing to the Trustee from
time to time, subject, however, to the provisions of this section. In
investing, reinvesting, exchanging, selling, and managing the Fund, the Trustee
shall discharge the 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 USC
80a-2. (a), may 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 USC 81a-1 et seq., including one which
may be created, managed, underwritten, or to which investment advice is
rendered or the shares of which are sold by the Trustee. The Trustee may vote
such shares in its discretion.
Section
8. Express Powers of Trustee. Without in any way limiting the
powers and discretions conferred upon the Trustee by the other provisions of
this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depository even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depository with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements of the Trustee shall be paid from
the Fund.
Section 10. Annual
Valuations. The Trustee shall annually, at least 30 days prior to the
anniversary date of establishment of the Fund, furnish to the Grantor and to
the 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.
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 may 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 Section 9.
Section 14. Instructions to the Trustee. All
orders, requests, and instructions by the Grantor to the Trustee shall be in
writing, signed by such persons as are designated in the attached Exhibit A or
such other designees as the Grantor may designate by amendments to Exhibit A.
The Trustee shall be fully protected in acting without inquiry in accordance
with the Grantor's orders, requests, and instructions. All orders, requests,
and instructions by the department to the Trustee shall be in writing, signed
by the department, or their designees, and the Trustee shall act and shall be
fully protected in acting in accordance with such orders, requests, and
instructions. The Trustee shall have the right to assume, in the absence of
written notice to the contrary, that no event constituting a change or a
termination of the authority of any person to act on behalf of the Grantor or
the 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.
Section 15. Notice of Nonpayment. If a
payment for bodily injury or property damage is made under Section 4 of this
trust, the Trustee shall notify the Grantor of such payment and the amount(s)
thereof within five (5) working days. The Grantor shall, on or before the
anniversary date of the establishment of the Fund following such notice, either
make payments to the Trustee in amounts sufficient to cause the trust to return
to its value immediately prior to the payment of claims under Section 4, or
shall provide written proof to the Trustee that other financial assurance for
liability coverage has been obtained equaling the amount necessary to return
the trust to its value prior to the payment of claims. If the Grantor does not
either make payments to the Trustee or provide the Trustee with such proof, the
Trustee shall within 10 working days after the anniversary date of the
establishment of the Fund provide a written notice of nonpayment to the
department.
Section 16. 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.
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 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.
Section 18.
Immunity and Indemnification. The Trustee may 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.
Section
19. Choice of Law. This Agreement shall be administered,
construed, and enforced according to the laws of the State of
Wisconsin.
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 may 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 s. NR 661.0151(12), Wis. Adm. Code, as such
regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(b) The following is an example of the
certification of acknowledgement which shall accompany the trust agreement for
a trust fund as specified in s.
NR 661.0147(10), Wis. Adm. Code.
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]
(13)
(a) A
standby trust agreement, as specified in s.
NR 661.0147(8) shall be worded as
follows, except that instructions in brackets are to be replaced with the
relevant information and the brackets deleted:
Standby Trust Agreement
Trust Agreement, the "Agreement," entered into as of
[date] by and between [name of the owner or operator] a [name of a State]
[insert "corporation," "partnership," "association," or "proprietorship"], the
"Grantor," and [name of corporate trustee], [insert, "incorporated in the State
of ________" or "a national bank"], the "trustee."
Whereas Wisconsin Department of Natural Resources,
"department," has established certain regulations applicable to the Grantor,
requiring that an owner or operator shall demonstrate financial responsibility
for bodily injury and property damage to third parties caused by sudden
accidental and/or non-sudden accidental occurrences arising from operations of
the facility or group of facilities.
Whereas, the Grantor has elected to establish a standby
trust into which the proceeds from a letter of credit may be deposited to
assure all or part of such financial responsibility for the facilities
identified herein.
Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this agreement, and
the Trustee is willing to act as trustee.
Now, therefore, the Grantor and the Trustee agree as
follows:
Section 1. Definitions. As
used in this Agreement:
(a) The term Grantor
means the owner or operator who enters into this Agreement and any successors
or assigns of the Grantor.
(b) The
term Trustee means the Trustee who enters into this Agreement and any successor
Trustee.
Section 2.
Identification of Facilities. This Agreement pertains to the facilities
identified on attached schedule A [on schedule A, for each facility list the
EPA Identification Number (if any issued), name, and address of the
facility(ies) and the amount of liability coverage, or portions thereof, if
more than one instrument affords combined coverage as demonstrated by this
Agreement].
Section 3.
Establishment of Fund. The Grantor and the Trustee hereby establish a standby
trust fund, hereafter the "Fund," for the benefit of any and all third parties
injured or damaged by [sudden and/or non-sudden] 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 non-sudden
occurrences, except that the Fund is not established for the benefit of third
parties for the following:
(a) Bodily injury
or property damage for which [insert Grantor] is obligated to pay damages by
reason of the assumption of liability in a contract or agreement. This
exclusion does not apply to liability for damages that [insert Grantor] would
be obligated to pay in the absence of the contract or agreement.
(b) Any obligation of [insert Grantor] under
a workers' compensation, disability benefits, or unemployment compensation law
or any similar law.
(c) Bodily
injury to:
(1) An employee of [insert
Grantor] arising from, and in the course of, employment by [insert Grantor];
or
(2) The spouse, child, parent,
brother or sister of that employee as a consequence of, or arising from, and in
the course of employment by [insert Grantor].
This exclusion applies:
(A) Whether [insert Grantor] may be liable as
an employer or in any other capacity; and
(B) To any obligation to share damages with
or repay another person who shall pay damages because of the injury to persons
identified in subs. (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 may 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.
Section
4. Payment for Bodily Injury or Property Damage. The Trustee shall
satisfy a third-party liability claim by drawing on the letter of credit
described in Schedule B and by making payments from the Fund only upon receipt
of one of the following documents:
(a)
Certification from the Grantor and the third-party claimant(s) that the
liability claim should be paid. The certification shall be worded as follows,
except that instructions in 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 non-sudden]
accidental occurrence arising from operating [Grantor's] facility should be
paid in the amount of $[ ]
[Signature]
Grantor
[Signatures]
Claimant(s)
(b) A valid final court order establishing a
judgment against the Grantor for bodily injury or property damage caused by
sudden or non-sudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.
Section 5. Payments Comprising the Fund.
Payments made to the Trustee for the Fund shall consist of the proceeds from
the letter of credit drawn upon by the Trustee in accordance with the
requirements of s. NR 661.0151(11), Wis. Adm. Code, and Section 4 of this
Agreement.
Section 6. Trustee
Management. The Trustee shall invest and reinvest the principal and income, in
accordance with general investment policies and guidelines which the Grantor
may communicate in writing to the Trustee from time to time, subject, however,
to the provisions of this Section. In investing, reinvesting, exchanging,
selling, and managing the Fund, the Trustee shall discharge the 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 USC
80a-2(a), may not be
acquired or held, unless they are securities or other obligations of the
Federal or a State government;
(ii)
The Trustee is authorized to invest the Fund in time or demand deposits of the
Trustee, to the extent insured by an agency of the Federal or a State
government; and
(iii) The Trustee
is authorized to hold cash awaiting investment or distribution uninvested for a
reasonable time and without liability for the payment of interest
thereon.
Section 7.
Commingling and Investment. The Trustee is expressly authorized in its
discretion:
(a) To transfer from time to time
any or all of the assets of the Fund to any common, commingled, or collective
trust fund created by the Trustee in which the Fund is eligible to participate,
subject to all of the provisions thereof, to be commingled with the assets of
other trusts participating therein; and
(b) To purchase shares in any investment
company registered under the Investment Company Act of 1940,
15 USC
80a-1
et seq., including one
which may be created, managed, underwritten, or to which investment advice is
rendered or the shares of which are sold by the Trustee. The Trustee may vote
such shares in its discretion.
Section
8. Express Powers of Trustee. Without in any way limiting the
powers and discretions conferred upon the Trustee by the other provisions of
this Agreement or by law, the Trustee is expressly authorized and empowered:
(a) To sell, exchange, convey, transfer, or
otherwise dispose of any property held by it, by public or private sale. No
person dealing with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any such sale
or other disposition;
(b) To make,
execute, acknowledge, and deliver any and all documents of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to carry out the powers herein granted;
(c) To register any securities held in the
Fund in its own name or in the name of a nominee and to hold any security in
bearer form or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee in other
fiduciary capacities, or to deposit or arrange for the deposit of such
securities in a qualified central depositary even though, when so deposited,
such securities may be merged and held in bulk in the name of the nominee of
such depositary with other securities deposited therein by another person, or
to deposit or arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a Federal
Reserve Bank, but the books and records of the Trustee shall at all times show
that all such securities are part of the Fund;
(d) To deposit any cash in the Fund in
interest-bearing accounts maintained or savings certificates issued by the
Trustee, in its separate corporate capacity, or in any other banking
institution affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
(e) To compromise or otherwise adjust all
claims in favor of or against the Fund.
Section 9. Taxes and Expenses. All taxes of
any kind that may be assessed or levied against or in respect of the Fund and
all brokerage commissions incurred by the Fund shall be paid from the Fund. All
other expenses incurred by the Trustee in connection with the administration of
this Trust, including fees for legal services rendered to the Trustee, the
compensation of the Trustee to the extent not paid directly by the Grantor, and
all other proper charges and disbursements to the Trustee shall be paid from
the Fund.
Section 10. Advice of
Counsel. The Trustee may from time to time consult with counsel, who may be
counsel to the Grantor, with respect to any question arising as to the
construction of this Agreement or any action to be taken hereunder. The Trustee
shall be fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
Section 11.
Trustee Compensation. The Trustee shall be entitled to reasonable compensation
for its services as agreed upon in writing from time to time with the
Grantor.
Section 12. Successor
Trustee. The Trustee may resign, or the Grantor may replace the Trustee, but
such resignation or replacement may 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 Section 9.
Section 13. Instructions to the Trustee. All
orders, requests, certifications of valid claims, and instructions to the
Trustee shall be in writing, signed by such persons as are designated in the
attached Exhibit A or such other designees as the Grantor may designate by
amendments to Exhibit A. The Trustee shall be fully protected in acting without
inquiry in accordance with the Grantor's orders, requests, and instructions.
The Trustee shall have the right to assume, in the absence of written notice to
the contrary, that no event constituting a change or a termination of the
authority of any person to act on behalf of the Grantor or the 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.
Section
14. 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.
Section
15. Irrevocability and Termination. Subject to the right of the
parties to amend this Agreement as provided in Section 14, this Trust shall be
irrevocable and shall continue until terminated at the written agreement of the
Grantor, the Trustee, and the 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.
Section 16.
Immunity and indemnification. The Trustee may 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.
Section
17. Choice of Law. This Agreement shall be administered,
construed, and enforced according to the laws of the State of [enter name of
State].
Section 18. Interpretation.
As used in this Agreement, words in the singular include the plural and words
in the plural include the singular. The descriptive headings for each Section
of this Agreement may 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 s. NR 661.0151(13), Wis. Adm. Code, as such
regulations were constituted on the date first above written.
[Signature of Grantor]
[Title]
Attest:
[Title]
[Seal]
[Signature of Trustee]
Attest:
[Title]
[Seal]
(b) The following is an example of the
certification of acknowledgement which shall accompany the trust agreement for
a standby trust fund as specified in s.
NR 661.0147(8).
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]
