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Revisions to the Definition of Solid Waste

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

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PDF Version (22 pp, 304K, About PDF)

[Federal Register: October 30, 2008 (Volume 73, Number 211)]
[Rules and Regulations]
[Page 64767-64788]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc08-15]

Revisions to the Definition of Solid Waste

[[Continued from page 64766]]
[[Page 64767]]

amount of the policy, he may withhold reimbursement of such amounts as
he deems prudent until he determines, in accordance with paragraph (h)
of this section, that the owner or operator is no longer required to
maintain financial assurance for the particular facility. If the
Regional Administrator does not instruct the insurer to make such
reimbursements, he will provide to the owner or operator a detailed
written statement of reasons.
    (6) The owner or operator must maintain the policy in full force
and effect until the Regional Administrator consents to termination of
the policy by the owner or operator as specified in paragraph (i)(10)
of this section. Failure to pay the premium, without substitution of
alternate financial assurance as specified in this section, will
constitute a significant violation of these regulations warranting such
remedy as the Regional Administrator deems necessary. Such violation
will be deemed to begin upon receipt by the Regional Administrator of a
notice of future cancellation, termination, or failure to renew due to
nonpayment of the premium, rather than upon the date of expiration.
    (7) Each policy must contain a provision allowing assignment of the
policy to a successor owner or operator. Such assignment may be
conditional upon consent of the insurer, provided such consent is not
unreasonably refused.
    (8) The policy must provide that the insurer may not cancel,
terminate, or fail to renew the policy except for failure to pay the
premium. The automatic renewal of the policy must, at a minimum,
provide the insured with the option of renewal at the face amount of
the expiring policy. If there is a failure to pay the premium, the
insurer may elect to cancel, terminate, or fail to renew the policy by
sending notice by certified mail to the owner or operator and the
Regional Administrator. Cancellation, termination, or failure to renew
may not occur, however, during the 120 days beginning with the date of
receipt of the notice by both the Regional Administrator and the owner
or operator, as evidenced by the return receipts. Cancellation,
termination, or failure to renew may not occur and the policy will
remain in full force and effect in the event that on or before the date
of expiration:
    (i) The Regional Administrator deems the facility abandoned; or
    (ii) Conditional exclusion or interim status is lost, terminated,
or revoked; or
    (iii) Closure is ordered by the Regional Administrator or a U.S.
district court or other court of competent jurisdiction; or
    (iv) The owner or operator is named as debtor in a voluntary or
involuntary proceeding under Title 11 (Bankruptcy), U.S. Code; or
    (v) The premium due is paid.
    (9) Whenever the current cost estimate increases to an amount
greater than the face amount of the policy, the owner or operator,
within 60 days after the increase, must either cause the face amount to
be increased to an amount at least equal to the current cost estimate
and submit evidence of such increase to the Regional Administrator, or
obtain other financial assurance as specified in this section to cover
the increase. Whenever the current cost estimate decreases, the face
amount may be reduced to the amount of the current cost estimate
following written approval by the Regional Administrator.
    (10) The Regional Administrator will give written consent to the
owner or operator that he may terminate the insurance policy when:
    (i) An owner or operator substitutes alternate financial assurance
as specified in this section; or
    (ii) The Regional Administrator releases the owner or operator from
the requirements of this section in accordance with paragraph (i) of
this section.
    (e) Financial test and corporate guarantee. (1) An owner or
operator may satisfy the requirements of this section by demonstrating
that he passes a financial test as specified in this paragraph. To pass
this test the owner or operator must meet the criteria of either
paragraph (e)(1) (i) or (ii) of this section:
    (i) The owner or operator must have:
    (A) Two of the following three ratios: A ratio of total liabilities
to net worth less than 2.0; a ratio of the sum of net income plus
depreciation, depletion, and amortization to total liabilities greater
than 0.1; and a ratio of current assets to current liabilities greater
than 1.5; and
    (B) Net working capital and tangible net worth each at least six
times the sum of the current cost estimates and the current plugging
and abandonment cost estimates; and
    (C) Tangible net worth of at least $10 million; and
    (D) Assets located in the United States amounting to at least 90
percent of total assets or at least six times the sum of the current
cost estimates and the current plugging and abandonment cost estimates.
    (ii) The owner or operator must have:
    (A) A current rating for his most recent bond issuance of AAA, AA,
A, or BBB as issued by Standard and Poor's or Aaa, Aa, A, or Baa as
issued by Moody's; and
    (B) Tangible net worth at least six times the sum of the current
cost estimates and the current plugging and abandonment cost estimates;
and
    (C) Tangible net worth of at least $10 million; and
    (D) Assets located in the United States amounting to at least 90
percent of total assets or at least six times the sum of the current
cost estimates and the current plugging and abandonment cost estimates.
    (2) The phrase ``current cost estimates'' as used in paragraph
(e)(1) of this section refers to the cost estimates required to be
shown in paragraphs 1-4 of the letter from the owner's or operator's
chief financial officer (Sec.  261.151(e)). The phrase ``current
plugging and abandonment cost estimates'' as used in paragraph (e)(1)
of this section refers to the cost estimates required to be shown in
paragraphs 1-4 of the letter from the owner's or operator's chief
financial officer (Sec.  144.70(f) of this chapter).
    (3) To demonstrate that he meets this test, the owner or operator
must submit the following items to the Regional Administrator:
    (i) A letter signed by the owner's or operator's chief financial
officer and worded as specified in Sec.  261.151(e); and
    (ii) A copy of the independent certified public accountant's report
on examination of the owner's or operator's financial statements for
the latest completed fiscal year; and
    (iii) If the chief financial officer's letter providing evidence of
financial assurance includes financial data showing that the owner or
operator satisfies paragraph (e)(1)(i) of this section that are
different from the data in the audited financial statements referred to
in paragraph (e)(3)(ii)of this section or any other audited financial
statement or data filed with the SEC, then a special report from the
owner's or operator's independent certified public accountant to the
owner or operator is required. The special report shall be based upon
an agreed upon procedures engagement in accordance with professional
auditing standards and shall describe the procedures performed in
comparing the data in the chief financial officer's letter derived from
the independently audited, year-end financial statements for the latest
fiscal year with the amounts in such financial statements, the findings
of the comparison, and the reasons for any differences.
    (4) The owner or operator may obtain an extension of the time
allowed for

[[Page 64768]]

submission of the documents specified in paragraph (e)(3) of this
section if the fiscal year of the owner or operator ends during the 90
days prior to the effective date of these regulations and if the year-
end financial statements for that fiscal year will be audited by an
independent certified public accountant. The extension will end no
later than 90 days after the end of the owner's or operator's fiscal
year. To obtain the extension, the owner's or operator's chief
financial officer must send, by the effective date of these
regulations, a letter to the Regional Administrator of each Region in
which the owner's or operator's facilities to be covered by the financial
test are located. This letter from the chief financial officer must:
    (i) Request the extension;
    (ii) Certify that he has grounds to believe that the owner or
operator meets the criteria of the financial test;
    (iii) Specify for each facility to be covered by the test the EPA
Identification Number (if any issued), name, address, and current cost
estimates to be covered by the test;
    (iv) Specify the date ending the owner's or operator's last
complete fiscal year before the effective date of these regulations in
this subpart;
    (v) Specify the date, no later than 90 days after the end of such
fiscal year, when he will submit the documents specified in paragraph
(e)(3) of this section; and
    (vi) Certify that the year-end financial statements of the owner or
operator for such fiscal year will be audited by an independent
certified public accountant.
    (5) After the initial submission of items specified in paragraph
(e)(3) of this section, the owner or operator must send updated
information to the Regional Administrator within 90 days after the
close of each succeeding fiscal year. This information must consist of
all three items specified in paragraph (e)(3) of this section.
    (6) If the owner or operator no longer meets the requirements of
paragraph (e)(1) of this section, he must send notice to the Regional
Administrator of intent to establish alternate financial assurance as
specified in this section. The notice must be sent by certified mail
within 90 days after the end of the fiscal year for which the year-end
financial data show that the owner or operator no longer meets the
requirements. The owner or operator must provide the alternate
financial assurance within 120 days after the end of such fiscal year.
    (7) The Regional Administrator may, based on a reasonable belief
that the owner or operator may no longer meet the requirements of
paragraph (e)(1) of this section, require reports of financial
condition at any time from the owner or operator in addition to those
specified in paragraph (e)(3) of this section. If the Regional
Administrator finds, on the basis of such reports or other information,
that the owner or operator no longer meets the requirements of
paragraph (e)(1) of this section, the owner or operator must provide
alternate financial assurance as specified in this section within 30
days after notification of such a finding.
    (8) The Regional Administrator may disallow use of this test on the
basis of qualifications in the opinion expressed by the independent
certified public accountant in his report on examination of the owner's
or operator's financial statements (see paragraph (e)(3)(ii) of this
section). An adverse opinion or a disclaimer of opinion will be cause
for disallowance. The Regional Administrator will evaluate other
qualifications on an individual basis. The owner or operator must
provide alternate financial assurance as specified in this section
within 30 days after notification of the disallowance.
    (9) The owner or operator is no longer required to submit the items
specified in paragraph (e)(3) of this section when:
    (i) An owner or operator substitutes alternate financial assurance
as specified in this section; or
    (ii) The Regional Administrator releases the owner or operator from
the requirements of this section in accordance with paragraph (i) of
this section.
    (10) An owner or operator may meet the requirements of this section
by obtaining a written guarantee. The guarantor must be the direct or
higher-tier parent corporation of the owner or operator, a firm whose
parent corporation is also the parent corporation of the owner or
operator, or a firm with a ``substantial business relationship'' with
the owner or operator. The guarantor must meet the requirements for
owners or operators in paragraphs (e)(1) through (8) of this section
and must comply with the terms of the guarantee. The wording of the
guarantee must be identical to the wording specified in Sec. 
261.151(g)(1). A certified copy of the guarantee must accompany the
items sent to the Regional Administrator as specified in paragraph
(e)(3) of this section. One of these items must be the letter from the
guarantor's chief financial officer. If the guarantor's parent
corporation is also the parent corporation of the owner or operator,
the letter must describe the value received in consideration of the
guarantee. If the guarantor is a firm with a ``substantial business
relationship'' with the owner or operator, this letter must describe
this ``substantial business relationship'' and the value received in
consideration of the guarantee. The terms of the guarantee must provide
that:
    (i) Following a determination by the Regional Administrator that
the hazardous secondary materials at the owner or operator's facility
covered by this guarantee do not meet the conditions of the exclusion
under Sec.  261.4(a)(24) of this chapter, the guarantor will dispose of
any hazardous secondary material as hazardous waste and close the
facility in accordance with closure requirements found in parts 264 or
265 of this chapter, as applicable, or establish a trust fund as
specified in paragraph (a) of this section in the name of the owner or
operator in the amount of the current cost estimate.
    (ii) The corporate guarantee will remain in force unless the
guarantor sends notice of cancellation by certified mail to the owner
or operator and to the Regional Administrator. Cancellation may not
occur, however, during the 120 days beginning on the date of receipt of
the notice of cancellation by both the owner or operator and the
Regional Administrator, as evidenced by the return receipts.
    (iii) If the owner or operator fails to provide alternate financial
assurance as specified in this section and obtain the written approval
of such alternate assurance from the Regional Administrator within 90
days after receipt by both the owner or operator and the Regional
Administrator of a notice of cancellation of the corporate guarantee
from the guarantor, the guarantor will provide such alternate financial
assurance in the name of the owner or operator.
    (f) Use of multiple financial mechanisms. An owner or operator may
satisfy the requirements of this section by establishing more than one
financial mechanism per facility. These mechanisms are limited to trust
funds, surety bonds, letters of credit, and insurance. The mechanisms
must be as specified in paragraphs (a) through (d) of this section,
respectively, of this section, except that it is the combination of
mechanisms, rather than the single mechanism, which must provide
financial assurance for an amount at least equal to the current cost
estimate. If an owner or operator uses a trust fund in combination with
a surety bond or a letter of credit, he may use the trust fund as the
standby trust fund for the other mechanisms. A single standby trust
fund may be established for two or more mechanisms. The Regional

[[Page 64769]]

Administrator may use any or all of the mechanisms to provide for the
facility.
    (g) Use of a financial mechanism for multiple facilities. An owner
or operator may use a financial assurance mechanism specified in this
section to meet the requirements of this section for more than one
facility. Evidence of financial assurance submitted to the Regional
Administrator must include a list showing, for each facility, the EPA
Identification Number (if any issued), name, address, and the amount of
funds assured by the mechanism. If the facilities covered by the
mechanism are in more than one Region, identical evidence of financial
assurance must be submitted to and maintained with the Regional
Administrators of all such Regions. The amount of funds available
through the mechanism must be no less than the sum of funds that would
be available if a separate mechanism had been established and
maintained for each facility. In directing funds available through the
mechanism for any of the facilities covered by the mechanism, the
Regional Administrator may direct only the amount of funds designated
for that facility, unless the owner or operator agrees to the use of
additional funds available under the mechanism.
    (h) Removal and Decontamination Plan for Release (1) An owner or
operator of a reclamation facility or an intermediate facility who
wishes to be released from his financial assurance obligations under
Sec.  261.4(a)(24)(vi)(F) of this chapter must submit a plan for
removing all hazardous secondary material residues to the Regional
Administrator at least 180 days prior to the date on which he expects
to cease to operate under the exclusion.
    (2) The plan must include, at least:
    (A) For each hazardous secondary materials storage unit subject to
financial assurance requirements under Sec.  261.4(a)(24)(vi)(F), a
description of how all excluded hazardous secondary materials will be
recycled or sent for recycling, and how all residues, contaminated
containment systems (liners, etc), contaminated soils, subsoils,
structures, and equipment will be removed or decontaminated as
necessary to protect human health and the environment, and
    (B) A detailed description of the steps necessary to remove or
decontaminate all hazardous secondary material residues and
contaminated containment system components, equipment, structures, and
soils including, but not limited to, procedures for cleaning equipment
and removing contaminated soils, methods for sampling and testing
surrounding soils, and criteria for determining the extent of
decontamination necessary to protect human health and the environment;
and
    (C) A detailed description of any other activities necessary to
protect human health and the environment during this timeframe,
including, but not limited to, leachate collection, run-on and run-off
control, etc; and
    (D) A schedule for conducting the activities described which, at a
minimum, includes the total time required to remove all excluded
hazardous secondary materials for recycling and decontaminate all units
subject to financial assurance under Sec.  261.4(a)(24)(vi)(F) and the
time required for intervening activities which will allow tracking of
the progress of decontamination.
    (3) The Regional Administrator will provide the owner or operator
and the public, through a newspaper notice, the opportunity to submit
written comments on the plan and request modifications to the plan no
later than 30 days from the date of the notice. He will also, in
response to a request or at his discretion, hold a public hearing
whenever such a hearing might clarify one or more issues concerning the
plan. The Regional Administrator will give public notice of the hearing
at least 30 days before it occurs. (Public notice of the hearing may be
given at the same time as notice of the opportunity for the public to
submit written comments, and the two notices may be combined.) The
Regional Administrator will approve, modify, or disapprove the plan
within 90 days of its receipt. If the Regional Administrator does not
approve the plan, he shall provide the owner or operator with a
detailed written statement of reasons for the refusal and the owner or
operator must modify the plan or submit a new plan for approval within
30 days after receiving such written statement. The Regional
Administrator will approve or modify this plan in writing within 60
days. If the Regional Administrator modifies the plan, this modified
plan becomes the approved plan. The Regional Administrator must assure
that the approved plan is consistent with paragraph (h) of this
section. A copy of the modified plan with a detailed statement of
reasons for the modifications must be mailed to the owner or operator.
    (4) Within 60 days of completion of the activities described for
each hazardous secondary materials management unit, the owner or
operator must submit to the Regional Administrator, by registered mail,
a certification that all hazardous secondary materials have been
removed from the unit and the unit has been decontaminated in
accordance with the specifications in the approved plan. The
certification must be signed by the owner or operator and by a
qualified Professional Engineer. Documentation supporting the
Professional Engineer's certification must be furnished to the Regional
Administrator, upon request, until he releases the owner or operator
from the financial assurance requirements for Sec. 
261.4(a)(24)(vi)(F).
    (i) Release of the owner or operator from the requirements of this
section. Within 60 days after receiving certifications from the owner
or operator and a qualified Professional Engineer that all hazardous
secondary materials have been removed from the facility or a unit at
the facility and the facility or a unit has been decontaminated in
accordance with the approved plan per paragraph (h), the Regional
Administrator will notify the owner or operator in writing that he is
no longer required under Sec.  261.4(a)(24)(vi)(F) to maintain
financial assurance for that facility or a unit at the facility, unless
the Regional Administrator has reason to believe that all hazardous
secondary materials have not been removed from the facility or unit at
a facility or that the facility or unit has not been decontaminated in
accordance with the approved plan. The Regional Administrator shall
provide the owner or operator a detailed written statement of any such
reason to believe that all hazardous secondary materials have not been
removed from the unit or that the unit has not been decontaminated in
accordance with the approved plan.

Sec. Sec.  261.144-261.146  [Reserved]

Sec.  261.147  Liability requirements.

    (a) Coverage for sudden accidental occurrences. An owner or
operator of a hazardous secondary material reclamation facility or an
intermediate facility subject to financial assurance requirements under
Sec.  261.4(a)(24)(vi)(F) of this chapter, or a group of such
facilities, must demonstrate financial responsibility for bodily injury
and property damage to third parties caused by sudden accidental
occurrences arising from operations of the facility or group of
facilities. The owner or operator must have and maintain liability
coverage for sudden accidental occurrences in the amount of at least $1
million per occurrence with an annual aggregate of at least $2 million,
exclusive of legal defense costs. This liability coverage may be
demonstrated as specified in paragraphs (a) (1), (2), (3), (4), (5), or
(6) of this section:

[[Page 64770]]

    (1) An owner or operator may demonstrate the required liability
coverage by having liability insurance as specified in this paragraph.
    (i) Each insurance policy must be amended by attachment of the
Hazardous Secondary Material Facility Liability Endorsement, or
evidenced by a Certificate of Liability Insurance. The wording of the
endorsement must be identical to the wording specified in Sec. 
261.151(h). The wording of the certificate of insurance must be
identical to the wording specified in Sec.  261.151(i). The owner or
operator must submit a signed duplicate original of the endorsement or
the certificate of insurance to the Regional Administrator, or Regional
Administrators if the facilities are located in more than one Region.
If requested by a Regional Administrator, the owner or operator must
provide a signed duplicate original of the insurance policy.
    (ii) Each insurance policy must be issued by an insurer which, at a
minimum, is licensed to transact the business of insurance, or eligible
to provide insurance as an excess or surplus lines insurer, in one or
more States.
    (2) An owner or operator may meet the requirements of this section
by passing a financial test or using the guarantee for liability
coverage as specified in paragraphs (f) and (g) of this section.
    (3) An owner or operator may meet the requirements of this section
by obtaining a letter of credit for liability coverage as specified in
paragraph (h) of this section.
    (4) An owner or operator may meet the requirements of this section
by obtaining a surety bond for liability coverage as specified in
paragraph (i) of this section.
    (5) An owner or operator may meet the requirements of this section
by obtaining a trust fund for liability coverage as specified in
paragraph (j) of this section.
    (6) An owner or operator may demonstrate the required liability
coverage through the use of combinations of insurance, financial test,
guarantee, letter of credit, surety bond, and trust fund, except that
the owner or operator may not combine a financial test covering part of
the liability coverage requirement with a guarantee unless the
financial statement of the owner or operator is not consolidated with
the financial statement of the guarantor. The amounts of coverage
demonstrated must total at least the minimum amounts required by this
section. If the owner or operator demonstrates the required coverage
through the use of a combination of financial assurances under this
paragraph, the owner or operator shall specify at least one such
assurance as ``primary'' coverage and shall specify other assurance as
``excess'' coverage.
    (7) An owner or operator shall notify the Regional Administrator in
writing within 30 days whenever:
    (i) A claim results in a reduction in the amount of financial
assurance for liability coverage provided by a financial instrument
authorized in paragraphs (a)(1) through (a)(6) of this section; or
    (ii) A Certification of Valid Claim for bodily injury or property
damages caused by a sudden or non-sudden accidental occurrence arising
from the operation of a hazardous secondary material reclamation
facility or intermediate facility is entered between the owner or
operator and third-party claimant for liability coverage under
paragraphs (a)(1) through (a)(6) of this section; or
    (iii) A final court order establishing a judgment for bodily injury
or property damage caused by a sudden or non-sudden accidental
occurrence arising from the operation of a hazardous secondary material
reclamation facility or intermediate facility is issued against the
owner or operator or an instrument that is providing financial
assurance for liability coverage under paragraphs (a)(1) through (a)(6)
of this section.
    (b) Coverage for nonsudden accidental occurrences. An owner or
operator of a hazardous secondary material reclamation facility or
intermediate facility with land-based units, as defined in Sec.  260.10
of this chapter, which are used to manage hazardous secondary materials
excluded under Sec.  261.4(a)(24) of this chapter or a group of such
facilities, must demonstrate financial responsibility for bodily injury
and property damage to third parties caused by nonsudden accidental
occurrences arising from operations of the facility or group of
facilities. The owner or operator must have and maintain liability
coverage for nonsudden accidental occurrences in the amount of at least
$3 million per occurrence with an annual aggregate of at least $6
million, exclusive of legal defense costs. An owner or operator who
must meet the requirements of this section may combine the required
per-occurrence coverage levels for sudden and nonsudden accidental
occurrences into a single per-occurrence level, and combine the
required annual aggregate coverage levels for sudden and nonsudden
accidental occurrences into a single annual aggregate level. Owners or
operators who combine coverage levels for sudden and nonsudden
accidental occurrences must maintain liability coverage in the amount
of at least $4 million per occurrence and $8 million annual aggregate.
This liability coverage may be demonstrated as specified in paragraph
(b)(1), (2), (3), (4), (5), or (6) of this section:
    (1) An owner or operator may demonstrate the required liability
coverage by having liability insurance as specified in this paragraph.
    (i) Each insurance policy must be amended by attachment of the
Hazardous Secondary Material Facility Liability Endorsement or
evidenced by a Certificate of Liability Insurance. The wording of the
endorsement must be identical to the wording specified in Sec. 
261.151(h). The wording of the certificate of insurance must be
identical to the wording specified in Sec.  261.151(i). The owner or
operator must submit a signed duplicate original of the endorsement or
the certificate of insurance to the Regional Administrator, or Regional
Administrators if the facilities are located in more than one Region.
If requested by a Regional Administrator, the owner or operator must
provide a signed duplicate original of the insurance policy.
    (ii) Each insurance policy must be issued by an insurer which, at a
minimum, is licensed to transact the business of insurance, or eligible
to provide insurance as an excess or surplus lines insurer, in one or
more States.
    (2) An owner or operator may meet the requirements of this section
by passing a financial test or using the guarantee for liability
coverage as specified in paragraphs (f) and (g) of this section.
    (3) An owner or operator may meet the requirements of this section
by obtaining a letter of credit for liability coverage as specified in
paragraph (h) of this section.
    (4) An owner or operator may meet the requirements of this section
by obtaining a surety bond for liability coverage as specified in
paragraph (i) of this section.
    (5) An owner or operator may meet the requirements of this section
by obtaining a trust fund for liability coverage as specified in
paragraph (j) of this section.
    (6) An owner or operator may demonstrate the required liability
coverage through the use of combinations of insurance, financial test,
guarantee, letter of credit, surety bond, and trust fund, except that
the owner or operator may not combine a

[[Page 64771]]

financial test covering part of the liability coverage requirement with
a guarantee unless the financial statement of the owner or operator is
not consolidated with the financial statement of the guarantor. The
amounts of coverage demonstrated must total at least the minimum
amounts required by this section. If the owner or operator demonstrates
the required coverage through the use of a combination of financial
assurances under this paragraph, the owner or operator shall specify at
least one such assurance as ``primary'' coverage and shall specify
other assurance as ``excess'' coverage.
    (7) An owner or operator shall notify the Regional Administrator in
writing within 30 days whenever:
    (i) A claim results in a reduction in the amount of financial
assurance for liability coverage provided by a financial instrument
authorized in paragraphs (b)(1) through (b)(6) of this section; or
    (ii) A Certification of Valid Claim for bodily injury or property
damages caused by a sudden or non-sudden accidental occurrence arising
from the operation of a hazardous secondary material treatment and/or
storage facility is entered between the owner or operator and third-
party claimant for liability coverage under paragraphs (b)(1) through
(b)(6) of this section; or
    (iii) A final court order establishing a judgment for bodily injury
or property damage caused by a sudden or non-sudden accidental
occurrence arising from the operation of a hazardous secondary material
treatment and/or storage facility is issued against the owner or
operator or an instrument that is providing financial assurance for
liability coverage under paragraphs (b)(1) through (b)(6) of this section.
    (c) Request for variance. If an owner or operator can demonstrate
to the satisfaction of the Regional Administrator that the levels of
financial responsibility required by paragraph (a) or (b) of this
section are not consistent with the degree and duration of risk
associated with treatment and/or storage at the facility or group of
facilities, the owner or operator may obtain a variance from the
Regional Administrator. The request for a variance must be submitted in
writing to the Regional Administrator. If granted, the variance will
take the form of an adjusted level of required liability coverage, such
level to be based on the Regional Administrator's assessment of the
degree and duration of risk associated with the ownership or operation
of the facility or group of facilities. The Regional Administrator may
require an owner or operator who requests a variance to provide such
technical and engineering information as is deemed necessary by the
Regional Administrator to determine a level of financial responsibility
other than that required by paragraph (a) or (b) of this section.
    (d) Adjustments by the Regional Administrator. If the Regional
Administrator determines that the levels of financial responsibility
required by paragraph (a) or (b) of this section are not consistent
with the degree and duration of risk associated with treatment and/or
storage at the facility or group of facilities, the Regional
Administrator may adjust the level of financial responsibility required
under paragraph (a) or (b) of this section as may be necessary to
protect human health and the environment. This adjusted level will be
based on the Regional Administrator's assessment of the degree and
duration of risk associated with the ownership or operation of the
facility or group of facilities. In addition, if the Regional
Administrator determines that there is a significant risk to human
health and the environment from nonsudden accidental occurrences
resulting from the operations of a facility that is not a surface
impoundment, pile, or land treatment facility, he may require that an
owner or operator of the facility comply with paragraph (b) of this
section. An owner or operator must furnish to the Regional
Administrator, within a reasonable time, any information which the
Regional Administrator requests to determine whether cause exists for
such adjustments of level or type of coverage.
    (e) Period of coverage. Within 60 days after receiving
certifications from the owner or operator and a qualified Professional
Engineer that all hazardous secondary materials have been removed from
the facility or a unit at the facility and the facility or a unit has
been decontaminated in accordance with the approved plan per Sec. 
261.143(h), the Regional Administrator will notify the owner or
operator in writing that he is no longer required under Sec. 
261.4(a)(24)(vi)(F) to maintain liability coverage for that facility or
a unit at the facility, unless the Regional Administrator has reason to
believe that that all hazardous secondary materials have not been
removed from the facility or unit at a facility or that the facility or
unit has not been decontaminated in accordance with the approved plan.
    (f) Financial test for liability coverage. (1) An owner or operator
may satisfy the requirements of this section by demonstrating that he
passes a financial test as specified in this paragraph. To pass this
test the owner or operator must meet the criteria of paragraph (f)(1)
(i) or (ii) of this section:
    (i) The owner or operator must have:
    (A) Net working capital and tangible net worth each at least six
times the amount of liability coverage to be demonstrated by this test;
and
    (B) Tangible net worth of at least $10 million; and
    (C) Assets in the United States amounting to either:
    (1) At least 90 percent of his total assets; or
    (2) at least six times the amount of liability coverage to be
demonstrated by this test.
    (ii) The owner or operator must have:
    (A) A current rating for his most recent bond issuance of AAA, AA,
A, or BBB as issued by Standard and Poor's, or Aaa, Aa, A, or Baa as
issued by Moody's; and
    (B) Tangible net worth of at least $10 million; and
    (C) Tangible net worth at least six times the amount of liability
coverage to be demonstrated by this test; and
    (D) Assets in the United States amounting to either:
    (1) At least 90 percent of his total assets; or
    (2) at least six times the amount of liability coverage to be
demonstrated by this test.
    (2) The phrase ``amount of liability coverage'' as used in
paragraph (f)(1) of this section refers to the annual aggregate amounts
for which coverage is required under paragraphs (a) and (b) of this
section and the annual aggregate amounts for which coverage is required
under paragraphs (a) and (b) of 40 CFR 264.147 and 265.147.
    (3) To demonstrate that he meets this test, the owner or operator
must submit the following three items to the Regional Administrator:
    (i) A letter signed by the owner's or operator's chief financial
officer and worded as specified in Sec.  261.151(f). If an owner or
operator is using the financial test to demonstrate both assurance as
specified by Sec.  261.143(e), and liability coverage, he must submit
the letter specified in Sec.  261.151(f) to cover both forms of
financial responsibility; a separate letter as specified in Sec. 
261.151(e) is not required.
    (ii) A copy of the independent certified public accountant's report
on examination of the owner's or operator's financial statements for
the latest completed fiscal year.
    (iii) If the chief financial officer's letter providing evidence of
financial assurance includes financial data showing that the owner or
operator satisfies paragraph (f)(1)(i) of this

[[Page 64772]]

section that are different from the data in the audited financial
statements referred to in paragraph (f)(3)(ii) of this section or any
other audited financial statement or data filed with the SEC, then a
special report from the owner's or operator's independent certified
public accountant to the owner or operator is required. The special
report shall be based upon an agreed upon procedures engagement in
accordance with professional auditing standards and shall describe the
procedures performed in comparing the data in the chief financial
officer's letter derived from the independently audited, year-end
financial statements for the latest fiscal year with the amounts in
such financial statements, the findings of the comparison, and the
reasons for any difference.
    (4) The owner or operator may obtain a one-time extension of the
time allowed for submission of the documents specified in paragraph
(f)(3) of this section if the fiscal year of the owner or operator ends
during the 90 days prior to the effective date of these regulations and
if the year-end financial statements for that fiscal year will be
audited by an independent certified public accountant. The extension
will end no later than 90 days after the end of the owner's or
operator's fiscal year. To obtain the extension, the owner's or
operator's chief financial officer must send, by the effective date of
these regulations, a letter to the Regional Administrator of each
Region in which the owner's or operator's facilities to be covered by
the financial test are located. This letter from the chief financial
officer must:
    (i) Request the extension;
    (ii) Certify that he has grounds to believe that the owner or
operator meets the criteria of the financial test;
    (iii) Specify for each facility to be covered by the test the EPA
Identification Number, name, address, the amount of liability coverage
and, when applicable, current closure and post-closure cost estimates
to be covered by the test;
    (iv) Specify the date ending the owner's or operator's last
complete fiscal year before the effective date of these regulations;
    (v) Specify the date, no later than 90 days after the end of such
fiscal year, when he will submit the documents specified in paragraph
(f)(3) of this section; and
    (vi) Certify that the year-end financial statements of the owner or
operator for such fiscal year will be audited by an independent
certified public accountant.
    (5) After the initial submission of items specified in paragraph
(f)(3) of this section, the owner or operator must send updated
information to the Regional Administrator within 90 days after the
close of each succeeding fiscal year. This information must consist of
all three items specified in paragraph (f)(3) of this section.
    (6) If the owner or operator no longer meets the requirements of
paragraph (f)(1) of this section, he must obtain insurance, a letter of
credit, a surety bond, a trust fund, or a guarantee for the entire
amount of required liability coverage as specified in this section.
Evidence of liability coverage must be submitted to the Regional
Administrator within 90 days after the end of the fiscal year for which
the year-end financial data show that the owner or operator no longer
meets the test requirements.
    (7) The Regional Administrator may disallow use of this test on the
basis of qualifications in the opinion expressed by the independent
certified public accountant in his report on examination of the owner's
or operator's financial statements (see paragraph (f)(3)(ii) of this
section). An adverse opinion or a disclaimer of opinion will be cause
for disallowance. The Regional Administrator will evaluate other
qualifications on an individual basis. The owner or operator must
provide evidence of insurance for the entire amount of required
liability coverage as specified in this section within 30 days after
notification of disallowance.
    (g) Guarantee for liability coverage. (1) Subject to paragraph
(g)(2) of this section, an owner or operator may meet the requirements
of this section by obtaining a written guarantee, hereinafter referred
to as ``guarantee.'' The guarantor must be the direct or higher-tier
parent corporation of the owner or operator, a firm whose parent
corporation is also the parent corporation of the owner or operator, or
a firm with a ``substantial business relationship'' with the owner or
operator. The guarantor must meet the requirements for owners or
operators in paragraphs (f)(1) through (f)(6) of this section. The
wording of the guarantee must be identical to the wording specified in
Sec.  261.151(g)(2). A certified copy of the guarantee must accompany
the items sent to the Regional Administrator as specified in paragraph
(f)(3) of this section. One of these items must be the letter from the
guarantor's chief financial officer. If the guarantor's parent
corporation is also the parent corporation of the owner or operator,
this letter must describe the value received in consideration of the
guarantee. If the guarantor is a firm with a ``substantial business
relationship'' with the owner or operator, this letter must describe
this ``substantial business relationship'' and the value received in
consideration of the guarantee.
    (i) If the owner or operator fails to satisfy a judgment based on a
determination of liability for bodily injury or property damage to
third parties caused by sudden or nonsudden accidental occurrences (or
both as the case may be), arising from the operation of facilities
covered by this corporate guarantee, or fails to pay an amount agreed
to in settlement of claims arising from or alleged to arise from such
injury or damage, the guarantor will do so up to the limits of coverage.
    (ii) [Reserved]
    (2)(i) In the case of corporations incorporated in the United
States, a guarantee may be used to satisfy the requirements of this
section only if the Attorneys General or Insurance Commissioners of:
    (A) The State in which the guarantor is incorporated; and
    (B) Each State in which a facility covered by the guarantee is
located have submitted a written statement to EPA that a guarantee
executed as described in this section and Sec.  264.151(g)(2) is a
legally valid and enforceable obligation in that State.
    (ii) In the case of corporations incorporated outside the United
States, a guarantee may be used to satisfy the requirements of this
section only if:
    (A) The non-U.S. corporation has identified a registered agent for
service of process in each State in which a facility covered by the
guarantee is located and in the State in which it has its principal
place of business; and if
    (B) The Attorney General or Insurance Commissioner of each State in
which a facility covered by the guarantee is located and the State in
which the guarantor corporation has its principal place of business,
has submitted a written statement to EPA that a guarantee executed as
described in this section and Sec.  261.151(h)(2) is a legally valid
and enforceable obligation in that State.
    (h) Letter of credit for liability coverage. (1) An owner or
operator may satisfy the requirements of this section by obtaining an
irrevocable standby letter of credit that conforms to the requirements
of this paragraph and submitting a copy of the letter of credit to the
Regional Administrator.
    (2) The financial institution issuing the letter of credit must be
an entity that has the authority to issue letters of credit and whose
letter of credit operations are regulated and examined by a Federal or
State agency.

[[Page 64773]]

    (3) The wording of the letter of credit must be identical to the
wording specified in Sec.  261.151(j).
    (4) An owner or operator who uses a letter of credit to satisfy the
requirements of this section may also establish a standby trust fund.
Under the terms of such a letter of credit, all amounts paid pursuant
to a draft by the trustee of the standby trust will be deposited by the
issuing institution into the standby trust in accordance with
instructions from the trustee. The trustee of the standby trust fund
must be an entity which has the authority to act as a trustee and whose
trust operations are regulated and examined by a Federal or State agency.
    (5) The wording of the standby trust fund must be identical to the
wording specified in Sec.  261.151(m).
    (i) Surety bond for liability coverage. (1) An owner or operator
may satisfy the requirements of this section by obtaining a surety bond
that conforms to the requirements of this paragraph and submitting a
copy of the bond to the Regional Administrator.
    (2) The surety company issuing the bond must be among those listed
as acceptable sureties on Federal bonds in the most recent Circular 570
of the U.S. Department of the Treasury.
    (3) The wording of the surety bond must be identical to the wording
specified in Sec.  261.151(k) of this chapter.
    (4) A surety bond may be used to satisfy the requirements of this
section only if the Attorneys General or Insurance Commissioners of:
    (i) The State in which the surety is incorporated; and
    (ii) Each State in which a facility covered by the surety bond is
located have submitted a written statement to EPA that a surety bond
executed as described in this section and Sec.  261.151(k) is a legally
valid and enforceable obligation in that State.
    (j) Trust fund for liability coverage. (1) An owner or operator may
satisfy the requirements of this section by establishing a trust fund
that conforms to the requirements of this paragraph and submitting an
originally signed duplicate of the trust agreement to the Regional
Administrator.
    (2) The trustee must be an entity which has the authority to act as
a trustee and whose trust operations are regulated and examined by a
Federal or State agency.
    (3) The trust fund for liability coverage must be funded for the
full amount of the liability coverage to be provided by the trust fund
before it may be relied upon to satisfy the requirements of this
section. If at any time after the trust fund is created the amount of
funds in the trust fund is reduced below the full amount of the
liability coverage to be provided, the owner or operator, by the
anniversary date of the establishment of the Fund, must either add
sufficient funds to the trust fund to cause its value to equal the full
amount of liability coverage to be provided, or obtain other financial
assurance as specified in this section to cover the difference. For
purposes of this paragraph, ``the full amount of the liability coverage
to be provided'' means the amount of coverage for sudden and/or
nonsudden occurrences required to be provided by the owner or operator
by this section, less the amount of financial assurance for liability
coverage that is being provided by other financial assurance mechanisms
being used to demonstrate financial assurance by the owner or operator.
    (4) The wording of the trust fund must be identical to the wording
specified in Sec.  261.151(l).

Sec.  261.148  Incapacity of owners or operators, guarantors, or
financial institutions.

    (a) An owner or operator must notify the Regional Administrator by
certified mail of the commencement of a voluntary or involuntary
proceeding under Title 11 (Bankruptcy), U.S. Code, naming the owner or
operator as debtor, within 10 days after commencement of the
proceeding. A guarantor of a corporate guarantee as specified in Sec. 
261.143(e) must make such a notification if he is named as debtor, as
required under the terms of the corporate guarantee.
    (b) An owner or operator who fulfills the requirements of Sec. 
261.143 or Sec.  261.147 by obtaining a trust fund, surety bond, letter
of credit, or insurance policy will be deemed to be without the
required financial assurance or liability coverage in the event of
bankruptcy of the trustee or issuing institution, or a suspension or
revocation of the authority of the trustee institution to act as
trustee or of the institution issuing the surety bond, letter of
credit, or insurance policy to issue such instruments. The owner or
operator must establish other financial assurance or liability coverage
within 60 days after such an event.

Sec.  261.149  Use of State-required mechanisms.

    (a) For a reclamation or intermediate facility located in a State
where EPA is administering the requirements of this subpart but where
the State has regulations that include requirements for financial
assurance of closure or liability coverage, an owner or operator may
use State-required financial mechanisms to meet the requirements of
Sec.  261.143 or Sec.  261.147 if the Regional Administrator determines
that the State mechanisms are at least equivalent to the financial
mechanisms specified in this subpart. The Regional Administrator will
evaluate the equivalency of the mechanisms principally in terms of
certainty of the availability of: Funds for the required closure
activities or liability coverage; and the amount of funds that will be
made available. The Regional Administrator may also consider other
factors as he deems appropriate. The owner or operator must submit to
the Regional Administrator evidence of the establishment of the
mechanism together with a letter requesting that the State-required
mechanism be considered acceptable for meeting the requirements of this
subpart. The submission must include the following information: The
facility's EPA Identification Number (if available), name, and address,
and the amount of funds for closure or liability coverage assured by
the mechanism. The Regional Administrator will notify the owner or
operator of his determination regarding the mechanism's acceptability
in lieu of financial mechanisms specified in this subpart. The Regional
Administrator may require the owner or operator to submit additional
information as is deemed necessary to make this determination. Pending
this determination, the owner or operator will be deemed to be in
compliance with the requirements of Sec.  261.143 or Sec.  261.147, as
applicable.
    (b) If a State-required mechanism is found acceptable as specified
in paragraph (a) of this section except for the amount of funds
available, the owner or operator may satisfy the requirements of this
subpart by increasing the funds available through the State-required
mechanism or using additional financial mechanisms as specified in this
subpart. The amount of funds available through the State and Federal
mechanisms must at least equal the amount required by this subpart.

Sec.  261.150  State assumption of responsibility.

    (a) If a State either assumes legal responsibility for an owner's
or operator's compliance with the closure or liability requirements of
this part or assures that funds will be available from State sources to
cover those requirements, the owner or operator will be in compliance
with the requirements of Sec.  261.143 or Sec.  261.147 if the Regional
Administrator determines that the State's assumption of responsibility
is at

[[Page 64774]]

least equivalent to the financial mechanisms specified in this subpart.
The Regional Administrator will evaluate the equivalency of State
guarantees principally in terms of: Certainty of the availability of
funds for the required closure activities or liability coverage; and
the amount of funds that will be made available. The Regional
Administrator may also consider other factors as he deems appropriate.
The owner or operator must submit to the Regional Administrator a
letter from the State describing the nature of the State's assumption
of responsibility together with a letter from the owner or operator
requesting that the State's assumption of responsibility be considered
acceptable for meeting the requirements of this subpart. The letter
from the State must include, or have attached to it, the following
information: The facility's EPA Identification Number (if available),
name, and address, and the amount of funds for closure or liability
coverage that are guaranteed by the State. The Regional Administrator
will notify the owner or operator of his determination regarding the
acceptability of the State's guarantee in lieu of financial mechanisms
specified in this subpart. The Regional Administrator may require the
owner or operator to submit additional information as is deemed
necessary to make this determination. Pending this determination, the
owner or operator will be deemed to be in compliance with the
requirements of Sec.  265.143 or Sec.  265.147, as applicable.
    (b) If a State's assumption of responsibility is found acceptable
as specified in paragraph (a) of this section except for the amount of
funds available, the owner or operator may satisfy the requirements of
this subpart by use of both the State's assurance and additional
financial mechanisms as specified in this subpart. The amount of funds
available through the State and Federal mechanisms must at least equal
the amount required by this subpart.

Sec.  261.151  Wording of the instruments.

    (a)(1) A trust agreement for a trust fund, as specified in Sec. 
261.143(a) must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Trust Agreement

    Trust Agreement, the ``Agreement,'' entered into as of [date]
by
and between [name of the owner or operator], a [name of State]
[insert ``corporation,'' ``partnership,'' ``association,'' or
``proprietorship''], the ``Grantor,'' and [name of corporate
trustee], [insert ``incorporated in the State of -----------'' or
``a national bank''], the ``Trustee.''
    Whereas, the United States Environmental Protection Agency,
``EPA,'' an agency of the United States Government, has established
certain regulations applicable to the Grantor, requiring that an
owner or operator of a facility regulated under parts 264, or 265,
or satisfying the conditions of the exclusion under Sec. 
261.4(a)(24) shall provide assurance that funds will be available if
needed for care of the facility under 40 CFR parts 264 or 265,
subparts G, 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 EPA
in the event that the hazardous secondary materials of the grantor
no longer meet the conditions of the exclusion under Sec. 
261.4(a)(24). The Grantor and the Trustee intend that no third party
have access to the Fund except as herein provided. The Fund is
established initially as consisting of the property, which is
acceptable to the Trustee, described in Schedule B attached hereto.
Such property and any other property subsequently transferred to the
Trustee is referred to as the Fund, together with all earnings and
profits thereon, less any payments or distributions made by the
Trustee pursuant to this Agreement. The Fund shall be held by the
Trustee, IN TRUST, as hereinafter provided. The Trustee shall not be
responsible nor shall it undertake any responsibility for the amount
or adequacy of, nor any duty to collect from the Grantor, any
payments necessary to discharge any liabilities of the Grantor
established by EPA.
    Section 4. Payments from the Fund. The Trustee shall make
payments from the Fund as the EPA Regional Administrator shall
direct, in writing, to provide for the payment of the costs of the
performance of activities required under subpart G of 40 CFR parts
264 or 265 for the facilities covered by this Agreement. The Trustee
shall reimburse the Grantor or other persons as specified by the EPA
Regional Administrator 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 EPA Regional Administrator 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 his duties with
respect to the trust fund solely in the interest of the beneficiary
and with the care, skill, prudence, and diligence under the
circumstances then prevailing which persons of prudence, acting in a
like capacity and familiar with such matters, would use in the conduct of
an enterprise of a like character and with like aims; except that:
    (i) Securities or other obligations of the Grantor, or any other
owner or operator of the facilities, or any of their affiliates as
defined in the Investment Company Act of 1940, as amended, 15 U.S.C.
80a-2.(a), shall not be acquired or held, unless they are securities
or other obligations of the Federal or a State government;
    (ii) The Trustee is authorized to invest the Fund in time or
demand deposits of the Trustee, to the extent insured by an agency
of the Federal or State government; and
    (iii) The Trustee is authorized to hold cash awaiting investment
or distribution uninvested for a reasonable time and without
liability for the payment of interest thereon.
    Section 7. Commingling and Investment. The Trustee is expressly
authorized in its discretion:
    (a) To transfer from time to time any or all of the assets of
the Fund to any common, commingled, or collective trust fund created
by the Trustee in which the Fund is eligible to participate, subject
to all of the provisions thereof, to be commingled with the assets
of other trusts participating therein; and
    (b) To purchase shares in any investment company registered
under the Investment Company Act of 1940, 15 U.S.C. 80a-1 et seq.,
including one which may be created, managed, underwritten, or to
which investment advice is rendered or the shares of which are sold
by the Trustee. The Trustee may vote such shares in its discretion.
    Section 8. Express Powers of Trustee. Without in any way
limiting the powers and discretions conferred upon the Trustee by
the other provisions of this Agreement or by law, the Trustee is
expressly authorized and empowered:
    (a) To sell, exchange, convey, transfer, or otherwise dispose of
any property held by it, by public or private sale. No person dealing

[[Page 64775]]

with the Trustee shall be bound to see to the application of the
purchase money or to inquire into the validity or expediency of any
such sale or other disposition;
    (b) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
    (c) To register any securities held in the Fund in its own name
or in the name of a nominee and to hold any security in bearer form
or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee
in other fiduciary capacities, or to deposit or arrange for the
deposit of such securities in a qualified central depositary even
though, when so deposited, such securities may be merged and held in
bulk in the name of the nominee of such depositary with other
securities deposited therein by another person, or to deposit or
arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a
Federal Reserve bank, but the books and records of the Trustee shall
at all times show that all such securities are part of the Fund;
    (d) To deposit any cash in the Fund in interest-bearing accounts
maintained or savings certificates issued by the Trustee, in its
separate corporate capacity, or in any other banking institution
affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
    (e) To compromise or otherwise adjust all claims in favor of or
against the Fund.
    Section 9. Taxes and Expenses. All taxes of any kind that may be
assessed or levied against or in respect of the Fund and all
brokerage commissions incurred by the Fund shall be paid from the
Fund. All other expenses incurred by the Trustee in connection with
the administration of this Trust, including fees for legal services
rendered to the Trustee, the compensation of the Trustee to the
extent not paid directly by the Grantor, and all other proper
charges and disbursements of the Trustee shall be paid from the Fund.
    Section 10. Annual Valuation. The Trustee shall annually, at
least 30 days prior to the anniversary date of establishment of the
Fund, furnish to the Grantor and to the appropriate EPA Regional
Administrator a statement confirming the value of the Trust. Any
securities in the Fund shall be valued at market value as of no more
than 60 days prior to the anniversary date of establishment of the
Fund. The failure of the Grantor to object in writing to the Trustee
within 90 days after the statement has been furnished to the Grantor
and the EPA Regional Administrator shall constitute a conclusively
binding assent by the Grantor, barring the Grantor from asserting
any claim or liability against the Trustee with respect to matters
disclosed in the statement.
    Section 11. Advice of Counsel. The Trustee may from time to time
consult with counsel, who may be counsel to the Grantor, with
respect to any question arising as to the construction of this
Agreement or any action to be taken hereunder. The Trustee shall be
fully protected, to the extent permitted by law, in acting upon the
advice of counsel.
    Section 12. Trustee Compensation. The Trustee shall be entitled
to reasonable compensation for its services as agreed upon in
writing from time to time with the Grantor.
    Section 13. Successor Trustee. The Trustee may resign or the
Grantor may replace the Trustee, but such resignation or replacement
shall not be effective until the Grantor has appointed a successor
trustee and this successor accepts the appointment. The successor
trustee shall have the same powers and duties as those conferred
upon the Trustee hereunder. Upon the successor trustee's acceptance
of the appointment, the Trustee shall assign, transfer, and pay over
to the successor trustee the funds and properties then constituting
the Fund. If for any reason the Grantor cannot or does not act in
the event of the resignation of the Trustee, the Trustee may apply
to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. The successor trustee shall
specify the date on which it assumes administration of the trust in
a writing sent to the Grantor, the EPA Regional Administrator, and
the present Trustee by certified mail 10 days before such change
becomes effective. Any expenses incurred by the Trustee as a result
of any of the acts contemplated by this Section shall be paid 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 EPA
Regional Administrator to the Trustee shall be in writing, signed by
the EPA Regional Administrators of the Regions in which the
facilities are located, 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 EPA hereunder has
occurred. The Trustee shall have no duty to act in the absence of
such orders, requests, and instructions from the Grantor and/or EPA,
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 appropriate EPA Regional Administrator, or by the
Trustee and the appropriate EPA Regional Administrator 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 EPA
Regional Administrator, or by the Trustee and the EPA Regional
Administrator, if the Grantor ceases to exist. Upon termination of
the Trust, all remaining trust property, less final trust
administration expenses, shall be delivered to the Grantor.
    Section 17. Immunity and Indemnification. The Trustee shall not
incur personal liability of any nature in connection with any act or
omission, made in good faith, in the administration of this Trust,
or in carrying out any directions by the Grantor or the EPA Regional
Administrator issued in accordance with this Agreement. The Trustee
shall be indemnified and saved harmless by the Grantor or from the
Trust Fund, or both, from and against any personal liability to
which the Trustee may be subjected by reason of any act or conduct
in its official capacity, including all expenses 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
[insert name of State].
    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 shall not affect the interpretation or the legal efficacy
of this Agreement.
    In Witness Whereof the parties have caused this Agreement to be
executed by their respective officers duly authorized and their
corporate seals to be hereunto affixed and attested as of the date
first above written: The parties below certify that the wording of
this Agreement is identical to the wording specified in 40 CFR
261.151(a)(1) as such regulations were constituted on the date first
above written.
    [Signature of Grantor]
    [Title]

Attest:
    [Title]
    [Seal]
    [Signature of Trustee]

Attest:
    [Title]
    [Seal]
    (2) The following is an example of the certification of
acknowledgment which must accompany the trust agreement for a trust
fund as specified in Sec.  261.143(a) of this chapter. State
requirements may differ on the proper content of this
acknowledgment.
State of---------------------------------------------------------------
County of--------------------------------------------------------------
    On this [date], before me personally came [owner or operator] to
me known, who, being by me duly sworn, did depose and say that she/
he resides at [address], that she/he is [title] of [corporation],
the corporation described in and which executed the above
instrument; that she/he knows the seal of said corporation; that the
seal affixed to such instrument is such corporate seal; that it was
so affixed by order of the Board of Directors of said corporation,
and that she/he signed her/his name thereto by like order.
    [Signature of Notary Public]
    (b) A surety bond guaranteeing payment into a trust fund, as
specified in Sec.  261.143(b) of this chapter, must be worded as
follows, except that instructions in brackets are to be replaced
with the relevant information and the brackets deleted:

[[Page 64776]]

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 U.S. EPA in the event that the
hazardous secondary materials at the reclamation or intermediate
facility listed below no longer meet the conditions of the exclusion
under 40 CFR 261.4(a)(24), 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 40 CFR sections 261.4(a)(24), 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 40 CFR sections 261.4(a)(24) 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 materials from
coverage as solid waste under 40 CFR sections 261.4(a)(24),
    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 an EPA Regional Administrator or a U.S. district court or
other court of competent jurisdiction,
    Or, if the Principal shall provide alternate financial
assurance, as specified in subpart H of 40 CFR part 261, as
applicable, and obtain the EPA Regional Administrator's written
approval of such assurance, within 90 days after the date notice of
cancellation is received by both the Principal and the EPA Regional
Administrator(s) 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 an EPA Regional Administrator 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 EPA
Regional Administrator.
    The liability of the Surety(ies) shall not be discharged by any
payment or succession of payments hereunder, unless and until such
payment or payments shall amount in the aggregate to the penal sum
of the bond, but in no event shall the obligation of the Surety(ies)
hereunder exceed the amount of said penal sum.
    The Surety(ies) may cancel the bond by sending notice of
cancellation by certified mail to the Principal and to the EPA
Regional Administrator(s) for the Region(s) in which the
facility(ies) is (are) located, provided, however, that cancellation
shall not occur during the 120 days beginning on the date of receipt
of the notice of cancellation by both the Principal and the EPA
Regional Administrator(s), 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 EPA Regional
Administrator(s) of the EPA Region(s) in which the bonded
facility(ies) is (are) located.
    [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 EPA Regional Administrator(s).
    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 40 CFR 261.151(b) as such
regulations were constituted on the date this bond was executed.

Principal

[Signature(s)]

-----------------------------------------------------------------------
[Name(s)]

-----------------------------------------------------------------------
[Title(s)]

-----------------------------------------------------------------------
[Corporate seal]-------------------------------------------------------

Corporate Surety(ies)

[Name and address]
State of incorporation:------------------------------------------------
Liability limit:
$----------------------------------------------------------------------
[Signature(s)]
[Name(s) and title(s)]
[Corporate seal]
[For every co-surety, provide signature(s), corporate seal, and
other information in the same manner as for Surety above.]
Bond premium: $--------------------------------------------------------
    (c) A letter of credit, as specified in Sec.  261.143(c) of this
chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Irrevocable Standby Letter of Credit

Regional Administrator(s)

Region(s)--------------------------------------------------------------

U.S. Environmental Protection Agency

    Dear Sir or Madam: We hereby establish our Irrevocable Standby
Letter of Credit No.-------- in your favor, in the event that the
hazardous secondary materials at the covered reclamation or
intermediary facility(ies) no longer meet the conditions of the
exclusion under 40 CFR 261.4(a)(24), 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 40 CFR 261.151(c) 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

[[Page 64777]]

and copyrighted by the International Chamber of Commerce,'' or ``the
Uniform Commercial Code''].
    (d) A certificate of insurance, as specified in Sec.  261.143(e)
of this chapter, must be worded as follows, except that instructions
in brackets are to be replaced with the relevant information and the
brackets deleted:

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 must 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 materials 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 40 CFR 261.143(d) as applicable
and as such regulations were constituted on the date shown
immediately below. It is agreed that any provision of the policy
inconsistent with such regulations is hereby amended to eliminate
such inconsistency.
    Whenever requested by the EPA Regional Administrator(s) of the
U.S. Environmental Protection Agency, the Insurer agrees to furnish
to the EPA Regional Administrator(s) 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 40 CFR 261.151(d) 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]

    (e) A letter from the chief financial officer, as specified in
Sec.  261.143(e) of this chapter, must be worded as follows, except
that instructions in brackets are to be replaced with the relevant
information and the brackets deleted:

Letter From Chief Financial Officer

    [Address to Regional Administrator of every Region in which
facilities for which financial responsibility is to be demonstrated
through the financial test are located].
    I am the chief financial officer of [name and address of firm].
This letter is in support of this firm's use of the financial test
to demonstrate financial assurance, as specified in subpart H of 40
CFR part 261.
    [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 subpart H of 40 CFR 261. The current
cost estimates covered by the test are shown for each facility: -------- .
    2. This firm guarantees, through the guarantee specified in
subpart H of 40 CFR part 261, 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 subpart H of 40 CFR part 261, 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 subpart
H of 40 CFR part 261. 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 materials 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 subpart H of 40 CFR part 261 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 UIC
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 subpart
H of 40 CFR parts 264 and 265. 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
subpart H of 40 CFR parts 264 and 265, 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 subpart H of 40 CFR part 264 or 265, 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 subpart H of 40 CFR parts 264 and
265. 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 subpart H of 40
CFR parts 264 and 265 or equivalent or substantially equivalent
State mechanisms. The current closure and/or post-closure cost
estimates not covered by such financial assurance are shown for each
facility: ----.
    This firm [insert ``is required'' or ``is not required''] to
file a Form 10K with the Securities and Exchange Commission (SEC)
for the latest fiscal year.
    The fiscal year of this firm ends on [month, day]. The figures
for the following items marked with an asterisk are derived from
this firm's independently audited, year-end financial statements for
the latest completed fiscal year, ended [date].
    [Fill in Alternative I if the criteria of paragraph (e)(1)(i) of
Sec.  261.143 of this chapter are used. Fill in Alternative II if
the criteria of paragraph (e)(1)(ii) of Sec.  261.143(e) of this
chapter 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 $--------

[[Page 64778]]

    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 40 CFR 261.151(e) as such regulations were
constituted on the date shown immediately below.
[Signature]------------------------------------------------------------
[Name]-----------------------------------------------------------------
[Title]----------------------------------------------------------------

[Date]

-----------------------------------------------------------------------

    (f) A letter from the chief financial officer, as specified in
Sec. 261.147(f) of this chapter, must be worded as follows, except
that instructions in brackets are to be replaced with the relevant
information and the brackets deleted.

Letter From Chief Financial Officer

    [Address to Regional Administrator of every Region in which
facilities for which financial responsibility is to be demonstrated
through the financial test are located].
    I am the chief financial officer of [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
Sec.  261.147[insert ``and costs assured Sec.  261.143(e)'' if
applicable] as specified in subpart H of 40 CFR part 261.
    [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 ``nonsudden'' or ``both sudden and nonsudden'']
accidental occurrences is being demonstrated through the financial
test specified in subpart H of 40 CFR part 261:--------
    The firm identified above guarantees, through the guarantee
specified in subpart H of 40 CFR part 261, liability coverage for
[insert ``sudden'' or ``nonsudden'' or ``both sudden and
nonsudden''] accidental occurrences at the following facilities
owned or operated by the following: ---------. The firm identified
above is [insert one or more: (1) The direct or higher-tier parent
corporation of the owner or operator; (2) owned by the same parent
corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee ---
------; or (3) engaged in the following substantial business
relationship with the owner or operator ---------, and receiving the
following value in consideration of this guarantee ---------].
[Attach a written description of the business relationship or a copy
of the contract establishing such relationship to this letter.]
    The firm identified above is the owner or operator of the
following facilities for which liability coverage for [insert
``sudden'' or ``nonsudden'' or ``both sudden and nonsudden'']
accidental occurrences is being demonstrated through the financial
test specified in subpart H of 40 CFR parts 264 and 265:--------
     The firm identified above guarantees, through the guarantee
specified in subpart H of 40 CFR parts 264 and 265, liability
coverage for [insert ``sudden'' or ``nonsudden'' or ``both sudden
and nonsudden''] accidental occurrences at the following facilities
owned or operated by the following: ----. The firm identified above
is [insert one or more: (1) The direct or higher-tier parent
corporation of the owner or operator; (2) owned by the same parent
corporation as the parent corporation of the owner or operator, and
receiving the following value in consideration of this guarantee --
--; or (3) engaged in the following substantial business
relationship with the owner or operator ----, and receiving the
following value in consideration of this guarantee ----]. [Attach a
written description of the business relationship or a copy of the
contract establishing such relationship to this letter.]
    [If you are using the financial test to demonstrate coverage of
both liability and costs assured under Sec.  261.143(e) or closure
or post-closure care costs under 40 CFR 264.143, 264.145, 265.143 or
265.145, 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 subpart H of 40 CFR 261. The current
cost estimates covered by the test are shown for each facility:--------.
    2. This firm guarantees, through the guarantee specified in
subpart H of 40 CFR part 261, 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 subpart H of 40 CFR part 261, 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 subpart
H of 40 CFR part 261. 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 materials 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 subpart H of 40 CFR part 261 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 UIC
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 subpart
H of 40 CFR parts 264 and 265. 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
subpart H of 40 CFR parts 264 and 265, the closure or post-closure
care of the following facilities owned or operated by the guaranteed
party. The

[[Page 64779]]

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 subpart H of 40 CFR part 264 or 265, 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 subpart H of 40 CFR parts 264 and
265. 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 subpart H of 40
CFR parts 264 and 265 or equivalent or substantially equivalent State
mechanisms. The current closure and/or post-closure cost estimates not
covered by such financial assurance are shown for each facility: --------.
    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 paragraph (f)(1)(i) of
Sec. 261.147 are used. Fill in Alternative II if the criteria of
paragraph (f)(1)(ii) of Sec. 261.147 are used.]

Alternative I

    1. Amount of annual aggregate liability coverage to be
demonstrated $---------.
    *2. Current assets $---------.
    *3. Current liabilities $---------.
    4. Net working capital (line 2 minus line 3) $---------.
    *5. Tangible net worth $---------.
    *6. If less than 90% 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 Sec.  261.143(e) or closure or post-closure care costs under
40 CFR 264.143, 264.145, 265.143 or 265.145.]

Part B. Facility Care and Liability Coverage

    [Fill in Alternative I if the criteria of paragraphs (e)(1)(i)
of Sec. 261.143 and (f)(1)(i) of Sec. 261.147 are used. Fill in
Alternative II if the criteria of paragraphs (e)(1)(ii) of Sec.
261.143 and (f)(1)(ii) of Sec. 261.147 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 40 CFR 261.151(f) as such regulations were
constituted on the date shown immediately below.
[Signature]------------------------------------------------------------
[Name]-----------------------------------------------------------------
[Title]----------------------------------------------------------------
[Date]-----------------------------------------------------------------
    (g)(1) A corporate guarantee, as specified in Sec.  261.143(e)
of this chapter, must be worded as follows, except that instructions
in brackets are to be replaced with the relevant information and the
brackets deleted:

Corporate Guarantee for 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 40
CFR 264.141(h) and 265.141(h)'' to the United States Environmental
Protection Agency (EPA).

Recitals

    1. Guarantor meets or exceeds the financial test criteria and
agrees to comply with the reporting requirements for guarantors as
specified in 40 CFR 261.143(e).
    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 subpart H of 40 CFR part 261 for the care of
facilities as identified above.

[[Page 64780]]

    4. For value received from [owner or operator], guarantor
guarantees that in the event of a determination by the Regional
Administrator that the hazardous secondary materials at the owner or
operator's facility covered by this guarantee do not meet the
conditions of the exclusion under Sec.  261.4(a)(24), the guarantor
will dispose of any hazardous secondary material as hazardous waste,
and close the facility in accordance with closure requirements found
in parts 264 or 265 of this chapter, as applicable, or establish a
trust fund as specified in Sec.  261.143(a) 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 EPA Regional Administrator(s) for the
Region(s) in which the facility(ies) is(are) located and to [owner
or operator] that he intends to provide alternate financial
assurance as specified in subpart H of 40 CFR part 261, as
applicable, in the name of [owner or operator]. Within 120 days
after the end of such fiscal year, the guarantor shall establish
such financial assurance unless [owner or operator] has done so.
    6. The guarantor agrees to notify the EPA Regional Administrator
by certified mail, of a voluntary or involuntary proceeding under
Title 11 (Bankruptcy), U.S. Code, naming guarantor as debtor, within
10 days after commencement of the proceeding.
    7. Guarantor agrees that within 30 days after being notified by
an EPA Regional Administrator 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 of 40 CFR parts 264, 265, or
subpart H of 40 CFR part 261, 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 40 CFR parts 264,
265, or Subpart H of 40 CFR part 261.
    9. Guarantor agrees to remain bound under this guarantee for as
long as [owner or operator] must comply with the applicable
financial assurance requirements of 40 CFR parts 264 and 265 or the
financial assurance condition of 40 CFR 261.4(a)(24)(vi)(F) for the
above-listed facilities, except as provided in paragraph 10 of this
agreement.
    10. [Insert the following language if the guarantor is (a) a
direct or higher-tier corporate parent, or (b) a firm whose parent
corporation is also the parent corporation of the owner or operator]:
    Guarantor may terminate this guarantee by sending notice by
certified mail to the EPA Regional Administrator(s) for the
Region(s) in which the facility(ies) is(are) located and to [owner
or operator], provided that this guarantee may not be terminated
unless and until [the owner or operator] obtains, and the EPA
Regional Administrator(s) approve(s), alternate coverage complying
with 40 CFR 261.143.
    [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 EPA Regional
Administrator(s) for the Region(s) in which the facility(ies)
is(are) located and by [the owner or operator].
    11. Guarantor agrees that if [owner or operator] fails to
provide alternate financial assurance as specified in 40 CFR parts
264, 265, or subpart H of 40 CFR 261, as applicable, and obtain
written approval of such assurance from the EPA Regional
Administrator(s) within 90 days after a notice of cancellation by
the guarantor is received by an EPA Regional Administrator from
guarantor, guarantor shall provide such alternate financial
assurance in the name of [owner or operator].
    12. Guarantor expressly waives notice of acceptance of this
guarantee by the EPA 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 40 CFR parts 264, 265, or subpart H of 40 CFR 261.
    I hereby certify that the wording of this guarantee is identical
to the wording specified in 40 CFR 261.151(g)(1) 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:----------------------------------------
    (2) A guarantee, as specified in Sec. 261.147(g) of this
chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Guarantee for Liability Coverage

    Guarantee made this [date] by [name of guaranteeing entity], a
business corporation 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 40 CFR [either 264.141(h) or
265.141(h)]'', to any and all third parties who have sustained or
may sustain bodily injury or property damage caused by [sudden and/
or nonsudden] accidental occurrences arising from operation of the
facility(ies) covered by this guarantee.

Recitals

    1. Guarantor meets or exceeds the financial test criteria and
agrees to comply with the reporting requirements for guarantors as
specified in 40 CFR 261.147(g).
    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 ``nonsudden'' or ``both
sudden and nonsudden''] accidental occurrences in above-named owner
or operator facilities for coverage in the amount of [insert dollar
amount] for each occurrence and [insert dollar amount] annual aggregate.
    3. For value received from [owner or operator], guarantor
guarantees to any and all third parties who have sustained or may
sustain bodily injury or property damage caused by [sudden and/or
nonsudden] accidental occurrences arising from operations of the
facility(ies) covered by this guarantee that in the event that
[owner or operator] fails to satisfy a judgment or award based on a
determination of liability for bodily injury or property damage to
third parties caused by [sudden and/or nonsudden] accidental
occurrences, arising from the operation of the above-named
facilities, or fails to pay an amount agreed to in settlement of a
claim arising from or alleged to arise from such injury or damage,
the guarantor will satisfy such judgment(s), award(s) or settlement
agreement(s) up to the limits of coverage identified above.
    4. Such obligation does not apply to any of the following:
    (a) Bodily injury or property damage for which [insert owner or
operator] is obligated to pay damages by reason of the assumption of
liability in a contract or agreement. This exclusion does not apply
to liability for damages that [insert owner or operator] would be
obligated to pay in the absence of the contract or agreement.
    (b) Any obligation of [insert owner or operator] under a
workers' compensation, disability benefits, or unemployment
compensation law or any similar law.
    (c) Bodily injury to:
    (1) An employee of [insert owner or operator] arising from, and
in the course of, employment by [insert owner or operator]; or
    (2) The spouse, child, parent, brother, or sister of that
employee as a consequence of, or arising from, and in the course of
employment by [insert owner or operator]. This exclusion applies:
    (A) Whether [insert owner or operator] may be liable as an
employer or in any other capacity; and
    (B) To any obligation to share damages with or repay another
person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
    (d) Bodily injury or property damage arising out of the
ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.

[[Page 64781]]

    (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 EPA Regional Administrator[s] for the
Region[s] in which the facility[ies] is[are] located and to [owner
or operator] that he intends to provide alternate liability coverage
as specified in 40 CFR 261.147, as applicable, in the name of [owner
or operator]. Within 120 days after the end of such fiscal year, the
guarantor shall establish such liability coverage unless [owner or
operator] has done so.
    6. The guarantor agrees to notify the EPA Regional Administrator
by certified mail of a voluntary or involuntary proceeding under
title 11 (Bankruptcy), U.S. Code, naming guarantor as debtor, within
10 days after commencement of the proceeding. Guarantor agrees that
within 30 days after being notified by an EPA Regional Administrator
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 40 CFR
261.147 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 40 CFR 261.147, provided that such modification shall become
effective only if a Regional Administrator 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] must comply with the applicable
requirements of 40 CFR 261.147 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 EPA Regional Administrator(s) for the
Region(s) in which the facility(ies) is(are) located and to [owner
or operator], provided that this guarantee may not be terminated
unless and until [the owner or operator] obtains, and the EPA
Regional Administrator(s) approve(s), alternate liability coverage
complying with 40 CFR 261.147.
    [Insert the following language if the guarantor is a firm
qualifying as a guarantor due to its ``substantial business
relationship'' with the owner or operator]:
    Guarantor may terminate this guarantee 120 days following
receipt of notification, through certified mail, by the EPA Regional
Administrator(s) for the Region(s) in which the facility(ies)
is(are) located and by [the owner or operator].
    11. Guarantor hereby expressly waives notice of acceptance of
this guarantee by any party.
    12. Guarantor agrees that this guarantee is in addition to and
does not affect any other responsibility or liability of the
guarantor with respect to the covered facilities.
    13. The Guarantor shall satisfy a third-party liability claim
only on receipt of one of the following documents:
    (a) Certification from the Principal and the third-party
claimant(s) that the liability claim should be paid. The certification
must be worded as follows, except that instructions in brackets are to be
replaced with the relevant information and the brackets deleted:

Certification of Valid Claim

    The undersigned, as parties [insert Principal] and [insert name
and address of third-party claimant(s)], hereby certify that the
claim of bodily injury and/or property damage caused by a [sudden or
nonsudden] accidental occurrence arising from operating
[Principal's] facility should be paid in the amount of $ .
[Signatures]-----------------------------------------------------------
Principal--------------------------------------------------------------
(Notary) Date----------------------------------------------------------
[Signatures]-----------------------------------------------------------
Claimant(s)------------------------------------------------------------
(Notary) Date----------------------------------------------------------
    (b) A valid final court order establishing a judgment against
the Principal for bodily injury or property damage caused by sudden
or nonsudden accidental occurrences arising from the operation of
the Principal's facility or group of facilities.
    14. In the event of combination of this guarantee with another
mechanism to meet liability requirements, this guarantee will be
considered [insert ``primary'' or ``excess''] coverage.
    I hereby certify that the wording of the guarantee is identical
to the wording specified in 40 CFR 261.151(g)(2) as such regulations
were constituted on the date shown immediately below.
Effective date:--------------------------------------------------------
[Name of guarantor]----------------------------------------------------
[Authorized signature for guarantor]-----------------------------------
[Name of person signing]-----------------------------------------------
[Title of person signing]----------------------------------------------
Signature of witness or notary:----------------------------------------
    (h) A hazardous waste facility liability endorsement as required
Sec.  261.147 must 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 40 CFR
261.147. The coverage applies at [list EPA Identification Number (if
any issued), name, and address for each facility] for [insert
``sudden accidental occurrences,'' ``nonsudden accidental
occurrences,'' or ``sudden and nonsudden accidental occurrences'';
if coverage is for multiple facilities and the coverage is different
for different facilities, indicate which facilities are insured for
sudden accidental occurrences, which are insured for nonsudden
accidental occurrences, and which are insured for both]. The limits
of liability are [insert the dollar amount of the ``each
occurrence'' and ``annual aggregate'' limits of the Insurer's
liability], exclusive of legal defense costs.
    2. The insurance afforded with respect to such occurrences is
subject to all of the terms and conditions of the policy; provided,
however, that any provisions of the policy inconsistent with
subsections (a) through (e) of this Paragraph 2 are hereby amended
to conform with subsections (a) through (e):
    (a) Bankruptcy or insolvency of the insured shall not relieve
the Insurer of its obligations under the policy to which this
endorsement is attached.
    (b) The Insurer is liable for the payment of amounts within any
deductible applicable to the policy, with a right of reimbursement
by the insured for any such payment made by the Insurer. This
provision does not apply with respect to that amount of any deductible
for which coverage is demonstrated as specified in 40 CFR 261.147(f).
    (c) Whenever requested by a Regional Administrator of the U.S.
Environmental Protection Agency (EPA), the Insurer agrees to furnish
to the Regional Administrator 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 Regional Administrator(s) of the EPA Region(s) in
which the facility(ies) is(are) located.
    (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
Regional Administrator(s) of the EPA Region(s) in which the
facility(ies) is (are) located.
    Attached to and forming part of policy No. ---- issued by [name
of Insurer], herein called the Insurer, of [address of Insurer] to
[name of insured] of [address] this ---------------- day of --------
--------, 19----. The effective date of said policy is ------------
---- day of ----------------, 19----.
    I hereby certify that the wording of this endorsement is
identical to the wording specified in 40 CFR 261.151(h) as such

[[Page 64782]]

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]
    (i) A certificate of liability insurance as required in Sec. 
261.147 must 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
40 CFR parts 264, 265, and the financial assurance condition of 40
CFR 261.4(a)(24)(vi)(F). The coverage applies at [list EPA
Identification Number (if any issued), name, and address for each
facility] for [insert ``sudden accidental occurrences,'' ``nonsudden
accidental occurrences,'' or ``sudden and nonsudden accidental
occurrences''; if coverage is for multiple facilities and the
coverage is different for different facilities, indicate which
facilities are insured for sudden accidental occurrences, which are
insured for nonsudden accidental occurrences, and which are insured
for both]. The limits of liability are [insert the dollar amount of
the ``each occurrence'' and ``annual aggregate'' limits of the
Insurer's liability], exclusive of legal defense costs. The coverage
is provided under policy number, issued on [date]. The effective
date of said policy is [date].
    2. The Insurer further certifies the following with respect to
the insurance described in Paragraph 1:
    (a) Bankruptcy or insolvency of the insured shall not relieve
the Insurer of its obligations under the policy.
    (b) The Insurer is liable for the payment of amounts within any
deductible applicable to the policy, with a right of reimbursement
by the insured for any such payment made by the Insurer. This
provision does not apply with respect to that amount of any deductible
for which coverage is demonstrated as specified in 40 CFR 261.147.
    (c) Whenever requested by a Regional Administrator of the U.S.
Environmental Protection Agency (EPA), the Insurer agrees to furnish
to the Regional Administrator 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 Regional Administrator(s)
of the EPA Region(s) in which the facility(ies) is(are) located.
    (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
Regional Administrator(s) of the EPA Region(s) in which the
facility(ies) is (are) located.

I hereby certify that the wording of this instrument is identical to
the wording specified in 40 CFR 261.151(i) as such regulation was
constituted on the date first above written, and that the Insurer is
licensed to transact the business of insurance, or eligible to
provide insurance as an excess or surplus lines insurer, in one or
more States.
[Signature of authorized representative of Insurer]
[Type name]
[Title], Authorized Representative of [name of Insurer]
[Address of Representative]
    (j) A letter of credit, as specified in Sec.  261.147(h) of this
chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Irrevocable Standby Letter of Credit

Name and Address of Issuing Institution--------------------------------
Regional Administrator(s)----------------------------------------------
Region(s)--------------------------------------------------------------
U.S. Environmental Protection Agency-----------------------------------
    Dear Sir or Madam: We hereby establish our Irrevocable Standby
Letter of Credit No. ------------- in the favor of [''any and all
third-party liability claimants'' or insert name of trustee of the
standby trust fund], at the request and for the account of [owner or
operator's name and address] for third-party liability awards or
settlements up to [in words] U.S. dollars $------------- per
occurrence and the annual aggregate amount of [in words] U.S.
dollars $----, for sudden accidental occurrences and/or for third-
party liability awards or settlements up to the amount of [in words]
U.S. dollars $------------- per occurrence, and the annual aggregate
amount of [in words] U.S. dollars $-------------, for nonsudden
accidental occurrences available upon presentation of a sight draft
bearing reference to this letter of credit No. -------------, and
[insert the following language if the letter of credit is being used
without a standby trust fund: (1) a signed certificate reading as follows:

Certificate of Valid Claim

    The undersigned, as parties [insert principal] and [insert name
and address of third party claimant(s)], hereby certify that the
claim of bodily injury and/or property damage caused by a [sudden or
nonsudden] accidental occurrence arising from operations of
[principal's] facility should be paid in the amount of $[ ]. We
hereby certify that the claim does not apply to any of the following:
    (a) Bodily injury or property damage for which [insert
principal] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert principal] would be
obligated to pay in the absence of the contract or agreement.
    (b) Any obligation of [insert principal] under a workers'
compensation, disability benefits, or unemployment compensation law
or any similar law.
    (c) Bodily injury to:
    (1) An employee of [insert principal] arising from, and in the
course of, employment by [insert principal]; or
    (2) The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of
employment by [insert principal].
    This exclusion applies:
    (A) Whether [insert principal] may be liable as an employer or
in any other capacity; and
    (B) To any obligation to share damages with or repay another
person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
    (d) Bodily injury or property damage arising out of the
ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
    (e) Property damage to:
    (1) Any property owned, rented, or occupied by [insert principal];
    (2) Premises that are sold, given away or abandoned by [insert
principal] if the property damage arises out of any part of those premises;
    (3) Property loaned to [insert principal];
    (4) Personal property in the care, custody or control of [insert
principal];
    (5) That particular part of real property on which [insert
principal] or any contractors or subcontractors working directly or
indirectly on behalf of [insert principal] are performing
operations, if the property damage arises out of these operations.

[Signatures]-----------------------------------------------------------
Grantor----------------------------------------------------------------
[Signatures]-----------------------------------------------------------
Claimant(s)------------------------------------------------------------

or (2) a valid final court order establishing a judgment against the
Grantor for bodily injury or property damage caused by sudden or
nonsudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.]
    This letter of credit is effective as of [date] and shall expire
on [date at least one year later], but such expiration date shall be
automatically extended for a period of [at least one year] on [date
and on each successive expiration date, unless, at least 120 days
before the current expiration date, we notify you, the USEPA
Regional Administrator for Region [Region], and [owner's or
operator's name] by certified mail that we have decided not to
extend this letter of credit beyond the current expiration date.
    Whenever this letter of credit is drawn on under and in
compliance with the terms of this credit, we shall duly honor such
draft upon presentation to us.
    [Insert the following language if a standby trust fund is not
being used: ``In the event that this letter of credit is used in
combination with another mechanism for

[[Page 64783]]

liability coverage, this letter of credit shall be considered
[insert ``primary'' or ``excess'' coverage].''
    We certify that the wording of this letter of credit is
identical to the wording specified in 40 CFR 261.151(j) 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''].
    (k) A surety bond, as specified in Sec. 261.147(i) of this
chapter, must be worded as follows: except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

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: ----

-----------------------------------------------------------------------
-----------------------------------------------------------------------

Nonsudden

Sudden accidental

accidental

 occurrences

occurrences

-----------------------------------------------------------------------
-----------------------------------------------------------------------


Penal Sum Per Occurrence..............  [insert amount]....................  [insert amount]
Annual Aggregate......................  [insert amount]....................  [insert amount]


-----------------------------------------------------------------------
-----------------------------------------------------------------------

    Purpose: This is an agreement between the Surety(ies) and the
Principal under which the Surety(ies), its(their) successors and
assignees, agree to be responsible for the payment of claims against
the Principal for bodily injury and/or property damage to third
parties caused by [``sudden'' and/or ``nonsudden''] accidental
occurrences arising from operations of the facility or group of
facilities in the sums prescribed herein; subject to the governing
provisions and the following conditions.
    Governing Provisions:
    (1) Section 3004 of the Resource Conservation and Recovery Act
of 1976, as amended.
    (2) Rules and regulations of the U.S. Environmental Protection
Agency (EPA), particularly 40 CFR parts 264, 265, and Subpart H of
40 CFR part 261 (if applicable).
    (3) Rules and regulations of the governing State agency (if
applicable) [insert citation].
    Conditions:
    (1) The Principal is subject to the applicable governing
provisions that require the Principal to have and maintain liability
coverage for bodily injury and property damage to third parties
caused by [``sudden'' and/or ``nonsudden''] accidental occurrences
arising from operations of the facility or group of facilities. Such
obligation does not apply to any of the following:
    (a) Bodily injury or property damage for which [insert
Principal] is obligated to pay damages by reason of the assumption
of liability in a contract or agreement. This exclusion does not
apply to liability for damages that [insert Principal] would be
obligated to pay in the absence of the contract or agreement.
    (b) Any obligation of [insert Principal] under a workers'
compensation, disability benefits, or unemployment compensation law
or similar law.
    (c) Bodily injury to:
    (1) An employee of [insert Principal] arising from, and in the
course of, employment by [insert principal]; or
    (2) The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of
employment by [insert Principal]. This exclusion applies:
    (A) Whether [insert Principal] may be liable as an employer or
in any other capacity; and
    (B) To any obligation to share damages with or repay another
person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
    (d) Bodily injury or property damage arising out of the
ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
    (e) Property damage to:
    (1) Any property owned, rented, or occupied by [insert Principal];
    (2) Premises that are sold, given away or abandoned by [insert
Principal] if the property damage arises out of any part of those premises;
    (3) Property loaned to [insert Principal];
    (4) Personal property in the care, custody or control of [insert
Principal];
    (5) That particular part of real property on which [insert
Principal] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Principal] are performing
operations, if the property damage arises out of these operations.
    (2) This bond assures that the Principal will satisfy valid
third party liability claims, as described in condition 1.
    (3) If the Principal fails to satisfy a valid third party
liability claim, as described above, the Surety(ies) becomes liable
on this bond obligation.
    (4) The Surety(ies) shall satisfy a third party liability claim
only upon the receipt of one of the following documents:
    (a) Certification from the Principal and the third party
claimant(s) that the liability claim should be paid. The
certification must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Certification of Valid Claim

    The undersigned, as parties [insert name of Principal] and
[insert name and address of third party claimant(s)], hereby certify
that the claim of bodily injury and/or property damage caused by a
[sudden or nonsudden] accidental occurrence arising from operating
[Principal's] facility should be paid in the amount of $[ ].

    [Signature]
    Principal
    [Notary] Date
    [Signature(s)]
    Claimant(s)

    [Notary] Date
or (b) A valid final court order establishing a judgment against the
Principal for bodily injury or property damage caused by sudden or
nonsudden accidental occurrences arising from the operation of the
Principal's facility or group of facilities.
    (5) In the event of combination of this bond with another
mechanism for liability coverage, this bond will be considered
[insert ``primary'' or ``excess''] coverage.
    (6) The liability of the Surety(ies) shall not be discharged by
any payment or succession of payments hereunder, unless and until
such payment or payments shall amount in the aggregate to the penal
sum of the bond. In no event shall the obligation of the Surety(ies)
hereunder exceed the amount of said annual aggregate penal sum,
provided that the Surety(ies) furnish(es) notice to the Regional
Administrator 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 USEPA
Regional Administrator for Region [Region ], provided, however, that
cancellation shall not occur during the 120 days beginning on the
date of receipt of the notice of cancellation by the Principal and
the Regional Administrator, as evidenced by the return receipt.
    (8) The Principal may terminate this bond by sending written
notice to the Surety(ies) and to the EPA Regional Administrator(s)
of the EPA Region(s) in which the bonded facility(ies) is (are) located.
    (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

[[Page 64784]]

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 40 CFR 261.151(k), 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: $--------------------------------------------------------
    (l)(1) A trust agreement, as specified in Sec.  261.147(j) of
this chapter, must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Trust Agreement

    Trust Agreement, the ``Agreement,'' entered into as of [date] by
and between [name of the owner or operator] a [name of State]
[insert ``corporation,'' ``partnership,'' ``association,'' or
``proprietorship''], the ``Grantor,'' and [name of corporate
trustee], [insert, ``incorporated in the State of --------'' or ``a
national bank''], the ``trustee.''
    Whereas, the United States Environmental Protection Agency,
``EPA,'' an agency of the United States Government, has established
certain regulations applicable to the Grantor, requiring that an
owner or operator must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden
accidental and/or nonsudden accidental occurrences arising from
operations of the facility or group of facilities.
    Whereas, the Grantor has elected to establish a trust to assure
all or part of such financial responsibility for the facilities
identified herein.
    Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this
agreement, and the Trustee is willing to act as trustee.
    Now, therefore, the Grantor and the Trustee agree as follows:
    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 nonsudden] accidental occurrences arising from operation of
the facility(ies) covered by this guarantee, in the amounts of ----
-----[up to $1 million] per occurrence and [up to $2 million] annual
aggregate for sudden accidental occurrences and -------- [up to $3
million] per occurrence and ---------[up to $6 million] annual
aggregate for nonsudden occurrences, except that the Fund is not
established for the benefit of third parties for the following:
    (a) Bodily injury or property damage for which [insert Grantor]
is obligated to pay damages by reason of the assumption of liability
in a contract or agreement. This exclusion does not apply to
liability for damages that [insert Grantor] would be obligated to
pay in the absence of the contract or agreement.
    (b) Any obligation of [insert Grantor] under a workers'
compensation, disability benefits, or unemployment compensation law
or any similar law.
    (c) Bodily injury to:
    (1) An employee of [insert Grantor] arising from, and in the
course of, employment by [insert Grantor]; or
    (2) The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of
employment by [insert Grantor]. This exclusion applies:
    (A) Whether [insert Grantor] may be liable as an employer or in
any other capacity; and
    (B) To any obligation to share damages with or repay another
person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
    (d) Bodily injury or property damage arising out of the
ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
    (e) Property damage to:
    (1) Any property owned, rented, or occupied by [insert Grantor];
    (2) Premises that are sold, given away or abandoned by [insert
Grantor] if the property damage arises out of any part of those premises;
    (3) Property loaned to [insert Grantor];
    (4) Personal property in the care, custody or control of [insert
Grantor];
    (5) That particular part of real property on which [insert
Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations,
if the property damage arises out of these operations.
    In the event of combination with another mechanism for liability
coverage, the Fund shall be considered [insert ``primary'' or
``excess''] coverage.
    The Fund is established initially as consisting of the property,
which is acceptable to the Trustee, described in Schedule B attached
hereto. Such property and any other property subsequently
transferred to the Trustee is referred to as the Fund, together with
all earnings and profits thereon, less any payments or distributions
made by the Trustee pursuant to this Agreement. The Fund shall be
held by the Trustee, IN TRUST, as hereinafter provided. The Trustee
shall not be responsible nor shall it undertake any responsibility
for the amount or adequacy of, nor any duty to collect from the
Grantor, any payments necessary to discharge any liabilities of the
Grantor established by EPA.
    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 must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Certification of Valid Claim

    The undersigned, as parties [insert Grantor] and [insert name
and address of third party claimant(s)], hereby certify that the
claim of bodily injury and/or property damage caused by a [sudden or
nonsudden] accidental occurrence arising from operating [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
nonsudden 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 his duties with respect to the trust fund solely in the
interest of the beneficiary and with the care, skill, prudence, and
diligence under the circumstance then prevailing which persons of
prudence, acting in a like capacity and familiar with such matters,
would use in the conduct of an enterprise of a like character and
with like aims; except that:
    (i) Securities or other obligations of the Grantor, or any other
owner or operator of the facilities, or any of their affiliates as
defined in the Investment Company Act of 1940, as amended, 15 U.S.C.
80a-2.(a), shall not be acquired or held unless they are securities
or other obligations of the Federal or a State government;
    (ii) The Trustee is authorized to invest the Fund in time or
demand deposits of the Trustee, to the extent insured by an agency
of the Federal or State government; and

[[Page 64785]]

    (iii) The Trustee is authorized to hold cash awaiting investment
or distribution uninvested for a reasonable time and without
liability for the payment of interest thereon. Section 7.
Commingling and Investment. The Trustee is expressly authorized in
its discretion:
    (a) To transfer from time to time any or all of the assets of
the Fund to any common commingled, or collective trust fund created
by the Trustee in which the fund is eligible to participate, subject
to all of the provisions thereof, to be commingled with the assets
of other trusts participating therein; and
    (b) To purchase shares in any investment company registered
under the Investment Company Act of 1940, 15 U.S.C. 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 appropriate EPA Regional
Administrator a statement confirming the value of the Trust. Any
securities in the Fund shall be valued at market value as of no more
than 60 days prior to the anniversary date of establishment of the
Fund. The failure of the Grantor to object in writing to the Trustee
within 90 days after the statement has been furnished to the Grantor
and the EPA Regional Administrator shall constitute a conclusively
binding assent by the Grantor barring the Grantor from asserting any
claim or liability against the Trustee with respect to matters
disclosed in the statement.
    Section 11. Advice of Counsel. The Trustee may from time to time
consult with counsel, who may be counsel to the Grantor with respect
to any question arising as to the construction of this Agreement or
any action to be taken hereunder. The Trustee shall be fully
protected, to the extent permitted by law, in acting upon the advice
of counsel.
    Section 12. Trustee Compensation. The Trustee shall be entitled
to reasonable compensation for its services as agreed upon in
writing from time to time with the Grantor.
    Section 13. Successor Trustee. The Trustee may resign or the
Grantor may replace the Trustee, but such resignation or replacement
shall not be effective until the Grantor has appointed a successor
trustee and this successor accepts the appointment. The successor
trustee shall have the same powers and duties as those conferred
upon the Trustee hereunder. Upon the successor trustee's acceptance
of the appointment, the Trustee shall assign, transfer, and pay over
to the successor trustee the funds and properties then constituting
the Fund. If for any reason the Grantor cannot or does not act in
the event of the resignation of the Trustee, the Trustee may apply
to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. The successor trustee shall
specify the date on which it assumes administration of the trust in
a writing sent to the Grantor, the EPA Regional Administrator, and
the present Trustee by certified mail 10 days before such change
becomes effective. Any expenses incurred by the Trustee as a result
of any of the acts contemplated by this section shall be paid 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 EPA
Regional Administrator to the Trustee shall be in writing, signed by
the EPA Regional Administrators of the Regions in which the
facilities are located, 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 EPA hereunder has
occurred. The Trustee shall have no duty to act in the absence of
such orders, requests, and instructions from the Grantor and/or EPA,
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 EPA Regional Administrator.
    Section 16. Amendment of Agreement. This Agreement may be
amended by an instrument in writing executed by the Grantor, the
Trustee, and the appropriate EPA Regional Administrator, or by the
Trustee and the appropriate EPA Regional Administrator 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 EPA
Regional Administrator, or by the Trustee and the EPA Regional
Administrator, if the Grantor ceases to exist. Upon termination of
the Trust, all remaining trust property, less final trust
administration expenses, shall be delivered to the Grantor.
    The Regional Administrator 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 shall not
incur personal liability of any nature in connection with any act or
omission, made in good faith, in the administration of this Trust,
or in carrying out any directions by the Grantor or the EPA Regional
Administrator issued in accordance with this Agreement. The Trustee
shall be indemnified and saved harmless by the Grantor or from the
Trust Fund, or both, from and against any personal liability to
which the Trustee may be subjected by reason of any act or conduct
in its official capacity,

[[Page 64786]]

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 [enter
name of State].
    Section 20. Interpretation. As used in this Agreement, words in
the singular include the plural and words in the plural include the
singular. The descriptive headings for each section of this
Agreement shall not affect the interpretation or the legal efficacy
of this Agreement.
    In Witness Whereof the parties have caused this Agreement to be
executed by their respective officers duly authorized and their
corporate seals to be hereunto affixed and attested as of the date
first above written. The parties below certify that the wording of
this Agreement is identical to the wording specified in 40 CFR
261.151(l) as such regulations were constituted on the date first
above written.

[Signature of Grantor]

[Title]

Attest:

[Title]

[Seal]

[Signature of Trustee]

Attest:

[Title]

[Seal]

    (2) The following is an example of the certification of
acknowledgement which must accompany the trust agreement for a trust
fund as specified in Sec. 261.147(j) of this chapter. State
requirements may differ on the proper
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]

    (m)(1) A standby trust agreement, as specified in Sec. 
261.147(h) of this chapter, must be worded as follows, except that
instructions in brackets are to be replaced with the relevant
information and the brackets deleted:

Standby Trust Agreement

    Trust Agreement, the ``Agreement,'' entered into as of [date] by
and between [name of the owner or operator] a [name of a State]
[insert ``corporation,'' ``partnership,'' ``association,'' or
``proprietorship''], the ``Grantor,'' and [name of corporate
trustee], [insert, ``incorporated in the State of ----------------''
or ``a national bank''], the ``trustee.''
    Whereas the United States Environmental Protection Agency,
``EPA,'' an agency of the United States Government, has established
certain regulations applicable to the Grantor, requiring that an
owner or operator must demonstrate financial responsibility for
bodily injury and property damage to third parties caused by sudden
accidental and/or nonsudden accidental occurrences arising from
operations of the facility or group of facilities.
    Whereas, the Grantor has elected to establish a standby trust
into which the proceeds from a letter of credit may be deposited to
assure all or part of such financial responsibility for the
facilities identified herein.
    Whereas, the Grantor, acting through its duly authorized
officers, has selected the Trustee to be the trustee under this
agreement, and the Trustee is willing to act as trustee.
    Now, therefore, the Grantor and the Trustee agree as follows:
    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 nonsudden] accidental occurrences arising from
operation of the facility(ies) covered by this guarantee, in the
amounts of ---------[up to $1 million] per occurrence and ---------
[up to $2 million] annual aggregate for sudden accidental
occurrences and ---------[up to $3 million] per occurrence and ----
-----[up to $6 million] annual aggregate for nonsudden occurrences,
except that the Fund is not established for the benefit of third
parties for the following:
    (a) Bodily injury or property damage for which [insert Grantor]
is obligated to pay damages by reason of the assumption of liability
in a contract or agreement. This exclusion does not apply to
liability for damages that [insert Grantor] would be obligated to
pay in the absence of the contract or agreement.
    (b) Any obligation of [insert Grantor] under a workers'
compensation, disability benefits, or unemployment compensation law
or any similar law.
    (c) Bodily injury to:
    (1) An employee of [insert Grantor] arising from, and in the
course of, employment by [insert Grantor]; or
    (2) The spouse, child, parent, brother or sister of that
employee as a consequence of, or arising from, and in the course of
employment by [insert Grantor].
    This exclusion applies:
    (A) Whether [insert Grantor] may be liable as an employer or in
any other capacity; and
    (B) To any obligation to share damages with or repay another
person who must pay damages because of the injury to persons
identified in paragraphs (1) and (2).
    (d) Bodily injury or property damage arising out of the
ownership, maintenance, use, or entrustment to others of any
aircraft, motor vehicle or watercraft.
    (e) Property damage to:
    (1) Any property owned, rented, or occupied by [insert Grantor];
    (2) Premises that are sold, given away or abandoned by [insert
Grantor] if the property damage arises out of any part of those premises;
    (3) Property loaned by [insert Grantor];
    (4) Personal property in the care, custody or control of [insert
Grantor];
    (5) That particular part of real property on which [insert
Grantor] or any contractors or subcontractors working directly or
indirectly on behalf of [insert Grantor] are performing operations,
if the property damage arises out of these operations.
    In the event of combination with another mechanism for liability
coverage, the Fund shall be considered [insert ``primary'' or
``excess''] coverage.
    The Fund is established initially as consisting of the proceeds
of the letter of credit deposited into the Fund. Such proceeds and
any other property subsequently transferred to the Trustee is
referred to as the Fund, together with all earnings and profits
thereon, less any payments or distributions made by the Trustee
pursuant to this Agreement. The Fund shall be held by the Trustee,
IN TRUST, as hereinafter provided. The Trustee shall not be
responsible nor shall it undertake any responsibility for the amount
or adequacy of, nor any duty to collect from the Grantor, any
payments necessary to discharge any liabilities of the Grantor
established by EPA.
    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 must be worded as follows, except that instructions in
brackets are to be replaced with the relevant information and the
brackets deleted:

Certification of Valid Claim

    The undersigned, as parties [insert Grantor] and [insert name
and address of third party claimant(s)], hereby certify that the
claim of bodily injury and/or property damage caused by a [sudden or
nonsudden] accidental occurrence arising from operating [Grantor's]
facility should be paid in the amount of $[ ]
[Signature]------------------------------------------------------------

Grantor----------------------------------------------------------------

[Signatures]-----------------------------------------------------------

Claimant(s)------------------------------------------------------------

[[Page 64787]]

-----------------------------------------------------------------------
    (b) A valid final court order establishing a judgment against
the Grantor for bodily injury or property damage caused by sudden or
nonsudden accidental occurrences arising from the operation of the
Grantor's facility or group of facilities.
    Section 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 40 CFR 261.151(k) 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 his duties with respect to the trust fund solely in the
interest of the beneficiary and with the care, skill, prudence, and
diligence under the circumstances then prevailing which persons of
prudence, acting in a like capacity and familiar with such matters,
would use in the conduct of an enterprise of a like character and
with like aims; except that:
    (i) Securities or other obligations of the Grantor, or any other
owner or operator of the facilities, or any of their affiliates as
defined in the Investment Company Act of 1940, as amended, 15 U.S.C.
80a-2(a), shall not be acquired or held, unless they are securities
or other obligations of the Federal or a State government;
    (ii) The Trustee is authorized to invest the Fund in time or
demand deposits of the Trustee, to the extent insured by an agency
of the Federal or 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 U.S.C. 80a-1 et seq.,
including one which may be created, managed, underwritten, or to
which investment advice is rendered or the shares of which are sold
by the Trustee. The Trustee may vote such shares in its discretion.
    Section 8. Express Powers of Trustee. Without in any way
limiting the powers and discretions conferred upon the Trustee by
the other provisions of this Agreement or by law, the Trustee is
expressly authorized and empowered:
    (a) To sell, exchange, convey, transfer, or otherwise dispose of
any property held by it, by public or private sale. No person
dealing with the Trustee shall be bound to see to the application of
the purchase money or to inquire into the validity or expediency of
any such sale or other disposition;
    (b) To make, execute, acknowledge, and deliver any and all
documents of transfer and conveyance and any and all other
instruments that may be necessary or appropriate to carry out the
powers herein granted;
    (c) To register any securities held in the Fund in its own name
or in the name of a nominee and to hold any security in bearer form
or in book entry, or to combine certificates representing such
securities with certificates of the same issue held by the Trustee
in other fiduciary capacities, or to deposit or arrange for the
deposit of such securities in a qualified central depositary even
though, when so deposited, such securities may be merged and held in
bulk in the name of the nominee of such depositary with other
securities deposited therein by another person, or to deposit or
arrange for the deposit of any securities issued by the United
States Government, or any agency or instrumentality thereof, with a
Federal Reserve Bank, but the books and records of the Trustee shall
at all times show that all such securities are part of the Fund;
    (d) To deposit any cash in the Fund in interest-bearing accounts
maintained or savings certificates issued by the Trustee, in its
separate corporate capacity, or in any other banking institution
affiliated with the Trustee, to the extent insured by an agency of
the Federal or State government; and
    (e) To compromise or otherwise adjust all claims in favor of or
against the Fund.
    Section 9. Taxes and Expenses. All taxes of any kind that may be
assessed or levied against or in respect of the Fund and all
brokerage commissions incurred by the Fund shall be paid from the
Fund. All other expenses incurred by the Trustee in connection with
the administration of this Trust, including fees for legal services
rendered to the Trustee, the compensation of the Trustee to the
extent not paid directly by the Grantor, and all other proper
charges and disbursements 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
shall not be effective until the Grantor has appointed a successor
trustee and this successor accepts the appointment. The successor
trustee shall have the same powers and duties as those conferred
upon the Trustee hereunder. Upon the successor trustee's acceptance
of the appointment, the Trustee shall assign, transfer, and pay over
to the successor trustee the funds and properties then constituting
the Fund. If for any reason the Grantor cannot or does not act in
the event of the resignation of the Trustee, the Trustee may apply
to a court of competent jurisdiction for the appointment of a
successor trustee or for instructions. The successor trustee shall
specify the date on which it assumes administration of the trust in
a writing sent to the Grantor, the EPA Regional Administrator and
the present Trustee by certified mail 10 days before such change
becomes effective. Any expenses incurred by the Trustee as a result
of any of the acts contemplated by this Section shall be paid 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 EPA Regional
Administrator hereunder has occurred. The Trustee shall have no duty
to act in the absence of such orders, requests, and instructions
from the Grantor and/or EPA, except as provided for herein.
    Section 14. Amendment of Agreement. This Agreement may be
amended by an instrument in writing executed by the Grantor, the
Trustee, and the EPA Regional Administrator, or by the Trustee and
the EPA Regional Administrator if the Grantor ceases to exist.
    Section 15. Irrevocability and Termination. Subject to the right
of the parties to amend this Agreement as provided in Section 14,
this Trust shall be irrevocable and shall continue until terminated
at the written agreement of the Grantor, the Trustee, and the EPA
Regional Administrator, or by the Trustee and the EPA Regional
Administrator, if the Grantor ceases to exist. Upon termination of
the Trust, all remaining trust property, less final trust
administration expenses, shall be paid to the Grantor.
    The Regional Administrator will agree to termination of the
Trust when the owner or operator substitutes alternative financial
assurance as specified in this section.
    Section 16. Immunity and indemnification. The Trustee shall not
incur personal liability of any nature in connection with any act or
omission, made in good faith, in the administration of this Trust,
or in carrying out any directions by the Grantor and the EPA
Regional Administrator issued in accordance with this Agreement. The
Trustee shall be indemnified and saved harmless by the Grantor or
from the Trust Fund, or both, from and against any personal
liability to which the Trustee may be subjected by reason of any act
or conduct in its official capacity, including all expenses
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

[[Page 64788]]

plural and words in the plural include the singular. The descriptive
headings for each Section of this Agreement shall not affect the
interpretation of the legal efficacy of this Agreement.
    In Witness Whereof the parties have caused this Agreement to be
executed by their respective officers duly authorized and their
corporate seals to be hereunto affixed and attested as of the date
first above written. The parties below certify that the wording of
this Agreement is identical to the wording specified in 40 CFR
261.151(m) as such regulations were constituted on the date first
above written.

[Signature of Grantor]

[Title]

Attest:

[Title]

[Seal]

[Signature of Trustee]

Attest:

[Title]

[Seal]

    (2) The following is an example of the certification of
acknowledgement which must accompany the trust agreement for a
standby trust fund as specified in section 261.147(h) of this
chapter. State requirements may differ on the proper content of this
acknowledgement.

State of---------------------------------------------------------------

County of--------------------------------------------------------------

    On this [date], before me personally came [owner or operator] to
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]

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM

• 13. The authority citation for part 270 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939 and 6974.

Subpart D--Changes to Permits

• 14. In Sec.  270.42, Appendix I is amended to add a new A. 9 and A. 10
to read as follows:

Sec.  270.42  Permit modification at the request of the permittee.

* * * * *

Appendix I to Sec.  270.42--Classification of permit modification

------------------------------------------------------------------------
                        Modifications                            Class
------------------------------------------------------------------------
A. General Permit Provisions.

                              * * * * * * *
    9. Changes to remove permit conditions applicable to a         \1\ 1
     unit excluded under the provisions of Sec.   261.4......
    10. Changes in the expiration date of a permit issued to       \1\ 1
     a facility at which all units are excluded under the
     provisions of Sec.   261.4..............................

                             * * * * * * *
------------------------------------------------------------------------
\1\ Class 1 modifications requiring prior Agency approval.

[FR Doc. E8-24399 Filed 10-29-08; 8:45 am]
BILLING CODE 6560-50-P

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